1

FISHERIES SUBSIDIES NEGOTIATIONS UNDER WTO -

AN INDIAN PERSPECTIVE

A Dissertation submitted to the National University of Advanced Legal Studies,

Kochi in partial fulfilment of the requirements for the Award of L.L.M Degree in

International Trade Law

THE NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

Kalamassery, Kochi-683 503 Kerala, India

2019-2020

Submitted by:

Ancy Vincent

(Register Number: LM0219007)

Under the Guidance and Supervision of

Mr. Hari S. Nayar

October 2020

NUALS, Kochi

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THE NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

Kalamassery, Kochi -6805 503, Kerala, India

CERTIFICATE ON PLAGIARISM CHECK

1

Name of the Candidate

Ancy Vincent

2 Title of thesis/dissertation Fisheries subsidies negotiations

under WTO- An Indian Perspective

3 Name of the Supervisor

4 Similar Content (%) identified

5 Acceptable maximum limit (%)

6 Software used

7 Date of verification

Checked by (with name, designation and signature):

Name and signature of the Candidate :

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3

DECLARATION

I, declare that this dissertation titles' Fisheries Subsidies Negotiations under WTO-

An Indian perspective' researched and submitted by me to The National University of

Advanced Legal Studies in partial fulfilment of the requirement for the award of the

Degree of Master of Laws in International Trade Law, under the guidance and

supervision of Mr. Hari S. Nayar, is an original, bonafide and legitimate work. It has

been pursued academic interest. This work or any type thereof has not been submitted

by me or anyone else for the award of another degree of either this University or any

other university.

Date: 12/10/2020 Ancy Vincent

Place: Ernakulam Reg no: LM0219007

LLM, International Trade Law

4

CERTIFICATE

This is to certify that Ms. Ancy Vincent, Register number LM0219007 has submitted

this Dissertation titled, "Fisheries Subsidies Negotiation Under WTO- An Indian

perspective" in partial fulfilment of the requirement for the award of Degree of Master

of Laws in International Trade Law to the National University of Advanced Legal

Studies, Kochi under my guidance and supervision. It is also affirmed that the

Dissertation submitted by her is original, bonafide and genuine.

Date:12/10/2020 Asst. Prof. Mr. Hari S. Nayar

Place: Ernakulam Guide &Supervisor

NUALS, Kochi

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ACKNOWLEDGEMENT

I hereby acknowledge that I have taken sincere efforts in completing my Dissertation

entitled 'Development of fisheries subsidies negotiations under WTO- An Indian

Perspective. I would like to extend my heartfelt gratitude with love and appreciation to

each and everyone who has been instrumental in getting this Dissertation to completion.

First and foremost, I would like to take this opportunity to extend my profound gratitude

to God for all his blessings he has showered upon me. I would also like to thank the

following especially:

My guide Mr. Hari S. Nayar, Assistant Professor of Law, NUALS (Kochi) whose

expertise, consistent guidance and ample time spent for the same that helped bring this

study into completion.

I do also acknowledge the valuable contributions made by Assistant Prof. Dr Jacob

Joseph throughout the development of this work.

I also express my sincere gratitude towards Prof.(Dr.) KC Sunny, Vice-Chancellor of

NUALS and Prof. (Dr.) Mini S. (Director of Centre for Post- Graduate studies) along

with all the faculty, especially Prof. (Dr.) M C Valson, Associate Prof.(Dr.)

Balakrishnan K, Associate Prof (Dr.) Anil Nair, Assistant Prof (Dr.) Athira P.S,

Assistant Prof. Raveendrakumar D and Assistant Prof. Arya P B for their endless

support and encouragement.

I would also like to convey my thanks to all the library staff for their timely assistance

to carry out the work.

My friends and classmates Adv. Asha Jose, Adv. Krishnapriya B, along with others

who offered much-needed help and support throughout the study.

Lastly and most importantly, my parents, Mr Vincent P J and Mrs Rosily Vincent with

my brother Alvin Vincent, without whose unfailing love and support, none of this

would have been possible. My heartfelt love and gratitude to all my relatives and friends

for their overwhelming support at every point.

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LIST OF ABBREVIATION

APEC Asian Pacific Economic Co-operation

CBD Convention on Biodiversity

CMFRI Central Marine Fisheries Research Institute

DAHD Department of Animal Husbandry and Dairying

DDA Doha Development Agenda

DOALOS Division for Ocean Affairs and the Law of the Sea

EEZ Exclusive Economic Zone

ETS Effluent Treatment System

EU European Union

FAO Food and Agricultural Organization

GEF Global Environment Facility

GEF(STAP) Scientific and Technical Advisory Panel of GEF

HSD High Speed Diesel

ICJ International Court of Justice

ICTs Information and Communication Technologies

ITLOS International Tribunal for Law Of Sea

IUU Illegal, Unreported and Unregulated

LDC Least Developed Country

LOS Law of Sea

MC11 WTO's Eleventh Ministerial Conference

MEA Multilateral Environmental Agreement

MFRA Marine Fisheries Regulation Act

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MPEDA Marine Product Export Development Authority

MSP Marine Spatial Planning

MSY Maximum Sustainable Yield

NCDC National Co-operative Development Corporation

NFP National Fisheries Policy

OAL Overall Length

OECD Organization for Economic Co-operation and Development

PES Payment for Ecosystem Services

PSMA Port State Measures Agreement

RFMO Regional Fisheries Management Organization

RNG Rules on Negotiating Group

RSW Refrigerated Sea Water System

S&DT- Special and Differential Treatment

SCM- Subsidies and Countervailing measures

SDG- Sustainable Development Goal

SIDS Small Island Developing States

SOFIA State of World Fisheries and Aquaculture

SSF small-Scale Fisheries

SVEs Small and Vulnerable Economies

TFA Trade Facilitation Agreement

TPP- Trans-Pacific Partnership

TPR- Trade Policy Review

TUSMP Technology Upgrade Scheme for Marine Product

UNCLOS United Nations Convention on Law of Sea

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UNEP United Nations Environment Programme

UNFSA United Nations Fish Stock Agreement

UNITAR United Nations Institute for Training and Research

VCLT Vienna Convention on the Law of Treaties

WTO World Trade Organization

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TABLE OF CONTENTS

CHAPTER 1 -INTRODUCTION 12-21

1.1) Introduction and background of the problem 12-14

1.2) Statement of problem 14-16

1.3) Research Objective 17

1.4) Hypothesis 17

1.5) Methodology 17

1.6) Research Questions 17

1.7) Outline of Chapters 17-18

1.8) Literature Review 18-21

CHAPTER 2- DEVELOPMENTS IN FISHERIES SUBSIDIES NEGOTIATION

2.1) Introduction 22-23

2.2) Overview of Subsidies 23-24

2.3) Definition of Fisheries subsidies 24

2.4) Subsidies under WTO 24-28

2.5) Fisheries subsidies and WTO Negotiations

2.5.1 Doha Ministerial Conference 28-29

2.5.2 The Hong Kong Ministerial Conference 29-30

2.5.3 Proposals of WTO Members

2 .5.31 Proposal of United States 30-31

2.5.32 The European Union's Proposal 31-32

2.5.33 Chinese Proposal 32-33

2.5.34 Japanese Proposal 33-34

2.5.4 2007 Chair's text 34-35

2.5.5 10th WTO Ministerial Conference (2015) 35-36

2.5.6 Sustainable Development Goal 14 36

2.5.7 Negotiating Group on Rules- Communication from the Chair December

2018 37

2.5.8 Negotiating Group on Rules- work Programme January- July 2019 38

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2.5.9 Negotiating Group on Rules Chair Submits a Draft Consolidated text to

WTO members 38

2.6 Conclusion 38

CHAPTER 3-- INTERNATIONAL LEGAL INSTRUMENTS ON FISERIES-

ACCESS TO RESOURCES, SUSTAINABILITY AND FISHERIES S.UBSIDIES

PERSPECTIVES 39-50

3.1) Introduction 39-40

3.2) International legal Instruments on Fisheries

3.2.1 United Nations Convention on Law of Sea 40-42

3.2.1.1 Access to Resource under UNCLOS:

1) Internal Waters 42

2) Exclusive Economic Zone 43

3) Exclusive Fishing Zone 44

4) Continental Shelf 44-45

5) High Seas 45

3.2.2 Fish Stock Agreement 1995 45-46

3.2.2. Straddling Stock and Migratory Stock 46-47

3.2.2 Governing bodies under UNCLOS 47-48

3.2.3 Food and Agricultural Organization 48-49

3.3) Sustainable Development and Sustainable Future 49-50

CHAPTER 4- INDIAN FISHERIES LANDSCAPE- REGULATORY

ENVIRONMENT-DEVELOPMENT CONCERNS AND SUBSIDIES SCENARIO

51-71

4.1) Introduction 51

4.2) Indian Fisheries Landscape 52-53

4.3 Fisheries Management in India 53-54

4.3.1 Fisheries Management under Exclusive Economic Zone 54-56

4.3.2 Fisheries Management under territorial Waters 56-58

4.3.3 National Fisheries Policy 2020 58-59

4.4 India's stand on Fisheries subsidies 59-63

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4.5 Marine Product Export Development Authority 63-64

4.6 Analysis of fisheries subsidies under different Indian states 65

4.7 Fisheries Development under Five-year Plans 65-71

4.8Conclusion 71

CHAPTER 5- UNITED NATIONS SUSTAINABLE GOALS AND FISHERIES

SECTOR 72-92

5.1 Introduction 72-74

5.2) Sustainable Development Goals 74-76

5.3) SDG14and its interconnectivity with other goals 76-77

5.4) Target 14 77-79

5.5) SDG Connections related to small-scale Fisheries 79-84

5.6)SDGs and Marine Spatial Planning 84-86

5.7)CBD and Ecosystem Approach 87-89

5.8 Fair and equitable benefit sharing from Integration of Traditional Knowledge into

Marine Spatial Planning 89-92

5.9Conclusion

CHAPTER 6- CONCLUSIONS AND RECOMMENDATIONS 93-101

Recommendations

6.1)The SCM Agreement could be revised to insert specific provisions on Fisheries

Subsidies 96

6.1.1) The definition of subsidies under SCM Agreement need to be modified 96-97

6.1.2) The requirement of specificity under Article 2 of the SCM Agreement need to

be more specific 97

6.3) IUU Vessels could be identified by the states 97

6.4)Prohibition of subsidies that contributes to overfishing 98

6.5)Special and Differential treatment for Developing Countries 98

6.6)National Fisheries Management should be given importance 98-99

BIBLIOGRAPHY 102-109

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CHAPTER 1

BACKGROUND AND INTRODUCTION

"The economies of most developing countries are based on their natural resources....

Their soils, forests, fisheries, species, and waters make up their principal stocks of

economic capital. The overexploitation and depletion of these stocks can provide

developing countries with financial gains in the very short term, but can also result

in a steady reduction of their economic potential over the medium and long term"

Mac Neill1

According to the United Nations Expectation, the World's Population will reach 9.8

billion by 2050 from the current 7.6 billion people and half of this growth is

concentrated in the developing countries.2 This excessive population growth will

exacerbate the current problems of hunger and malnutrition in many poor communities

of South Asia and Africa Sub-Saharan. It would be essential to increase global food

production by 50 per cent by 2050 to feed this increasing world population.3

The fisheries sector is critical to food security and nutritional intake for a large number

of people globally. It also supports livelihoods, both directly and indirectly, for about

10-12 per cent of the global population. Fisheries resources are a significant source of

protein, vitamin and micro-nutrients which are not readily available in these amounts

and varieties either in crops or other feeding kinds of stuff. They account for about 17

per cent of animal protein that is consumed by many low-income rural communities.4

A cheap variety of fish can be converted to make an odourless, Colourless fish protein

concentrate that could be used as a flour additive to supplement protein-deficient diets

1 MacNeill et al., Beyond Interdependence: The Meshing of the World's Economy and the Earth's

Ecology, p. 59 as cited in Gregory White “Too Many Boats, Not Enough Fish: The Political Economy

of Morocco's 1995 Fishing Accord with the European Union” The Journal of Developing Areas, Vol.

31, No. 3 (Spring, 1997), pp. 313-33(16th August 2019)

2 United Nations, 2017. No Title. [WWW Document].

URL.http://www.un.org/sustainabledevelopment/blog/2017/06/world-population-projected-to-reach-9-

8-billion-in-2050-and-11-2-billion-in-2100-says-un/ (accessed 22.5 2020) 3FAO - Food and Agriculture Organization of the United Nations, 2017a. The Future of Food

and Agriculture - Trends and Challenges. 4 Fernandes, J.A., Kay, S., Hossain, M.A.R., Ahmed, M., Cheung, W.W.L., Lazar, A.N., Barange, M.,

2016. Projecting marine fish production and catch potential in Bangladesh in the 21st century under long-

term environmental change and management scenarios. ICES J. Mar. Sci. 73, 1357–1369

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at a slightly lower cost than eggs, milk or meat. There are other possibilities such as

fish soup powder and fish flakes that can increase the contribution of protein from fish

without increasing the amount of capture.5 In recent years, world per capita fish

consumption has doubled from an average of 9.9 kg in the 1960s to over 20 kg in 20166

as a result of a combination of factors such as population growth, increasing income

and urbanisation, fast expansion of fish production and more productive channels of

distribution.7 According to the estimation, about 64 per cent of the world's Fisheries

located in the coastal areas of developing countries.8 According to FAO, more than 14.5

million people in India rely on fishing activities both directly and indirectly.9 The sector

is a foundation for the economy and security of the country's livelihood. The overall

production of fish and fishery-derived products exceeded 9.6 million tons during 2013–

14; the country is the world's third-largest producer of inland catches and aquaculture.

According to the National Marine Fisheries Census, 2010, the marine fishermen

population in India is 4.0 million, of which 0.99 million are considered to be active

fishermen. Among active fishermen, 33 per cent are employed in the mechanised

sector, 62 per cent in the motorised sector and 5 per cent in the artisanal sector10. The

potential of the fisheries sector in general and marine fisheries sub-sector, in particular,

was recognised quite early in the Indian development planning. Since then a

considerable amount of public and private efforts has been channelled into the sector

for developing it as an instrument of growth. Apart from the prime consideration of

securing food and nutritional requirements of the population, the fisheries sector plays

a pivotal role in trade and commerce, and in the process promotes employment and

livelihoods of coastal communities. The export of fish and fish associated products has

increased the economical turnover of 30,213.26 crores (US$ 46.5 million) in 2013–14

5 National Committee on Science and Technology, NCST Sectoral Report on Marine Resources, New

Delhi, 1973, p. 250. 6 FAO - Food and Agriculture Organization of the United Nations, 2017b. No Title. [WWW

Document]. URL. http://www.fao.org/news/story/en/item/421871/icode/ (accessed22.May.2020). 7 FAO - Food and Agriculture Organization of the United Nations, 2014a. The State of World Fisheries

and Aquaculture Opportunities and Challenges. [WWW Document]. URL. http://www.fao.org/3/a-

i3720e.pdf (accessed 22-5 2020) 8 Frederick W. Bell, "World-wide Economic Aspects of Extended Fishery Jurisdiction Management,"

in Lee G. Anderson, ed., Economic Impacts of Extended Fishery Jurisdiction, Ann Arbor Science

Publishers,1977, p. 14. 9 FAO - Food and Agriculture Organization of the United Nations, 2015a. National Aquaculture Sector

Overview – India. [WWW Document]. URL.

http://www.fao.org/fishery/countrysector/naso_india/en#tcN70019 (accessed 22.5.2020). 10Artisinal Fisheries- Traditional fisheries involving fishing households (as opposed to commercial

companies), using relatively small amount of capital, relatively small fishing vessels, making short

fishing trips, close to shore, mainly for local consumption.

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(a crore is a unit of 10,000,000 in the Indian numbering system;)11. The fisheries sector,

particularly artisanal and semi-industrial fishing was for a long time the primary source

of employment for unqualified young people.12 This is especially true in delta areas

where, apart from skilled anglers, there are also many people who often fish to provide

their families with food (subsistence fishermen13). In all the decades, the fisheries sector

has reported higher growth compared with the agricultural industry. The rising fish

production indicates the fisheries sector is booming and contributing to the nation's

economic development.14The Indian Ocean's under-utilised marine resources, the

availability of adequate cheap labour and the exclusive right to exploit a large area of

ocean space offer vast potential for advantage, while at the same time offering

formidable impediment to India's capability to manage it.15

STATEMENT OF PROBLEM

Over many years, marine resources have been over utilised and over-exploited, leading

to pertinent questions about ecological sustainability. Overfishing is one of the

significant threats faced by Oceans and marine ecosystems. Nearly 90 per cent of

fish stocks are estimated to be over-exploited or completely exploited, which has

drastic effects at several levels, including on the climate, global food security and

economic growth, particularly in developing countries.16 As per the United Nations

Food and Agriculture Organization, around 87 per cent of the world's fish stocks were

either fully exploited or overexploited. Though several components have contributed to

the over-exploitation of fish, the role of fisheries subsidies cannot be sufficiently

emphasised.

The FAO initiated the global debate on fisheries subsidies in the early 1990s, leading

to the 1992 Conference on responsible fishing held in Mexico. The connection between

overfishing and certain types of fisheries subsidies is long overdue. It has been

11 Government of India, 2014. Handbook on Fisheries Statistics, (2014) 12 Id 13 All fish caught are shared and consumed directly by the families and kin of the fishers rather than

being bought by intermediaries and sold at the next larger market. Pure subsistence fisheries are rare as

part of the products that are often sold or exchanged for other goods or services. 14 Anjani Kumar & P.K Joshi etal ‘Fisheries Sector in India: An Overview of Performance, Policies and

Programmes 2 (2003) 15 Manjula Shyam, The Emerging Fisheries Regime: Implications for India, 8 Ocean Dev. & Int'l L. 35

(1980). 16 Food and Agriculture Organization of the United Nations, 'The State of the World Fisheries and

Aquaculture' (Report, 2016) 38.

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recognised and is the subject of increased international attention recently. The main

argument was that subsidies are a significant factor in the creation and promotion of

excess fishing capacity.17 The rising global demand for fish is motivated by the

globalisation of the fisheries trade18 . It is a major contributing factor in encouraging

increased fishing capacity and effort,19 which has eventually contributed to overfishing.

According to the World Bank, any profit to be gained from a globalised fisheries trade

has been undermined by inadequate fisheries governance that has allowed such

overfishing and fish stock depletion.20 Perverse economic incentives create a situation

where governments find themselves to provide enormous subsidies for the maintenance

of fisheries which would otherwise they will be unable to operate, distort global trade

and lead to overfishing and unsustainable fishing.21

In light of these issues, the leaders of the World Trade Organization (WTO) agreed to

find a solution for addressing fisheries subsidies within the context of international

trade law. The WTO Ministerial Conference in Doha then launched negotiations to

develop disciplines on fisheries subsidies. Recognising the severity of the problem of

overfishing, in its Ministerial Declaration of 2001, the World Trade Organization

("WTO") urged WTO member nations to keep developing and discussing unique WTO

17 Amanda Rologas Tsangalis, Fisheries Subsidies under the Trans-Pacific Partnership: Towards Positive

Outcomes for Global Fisheries Sustainability and Regime Interaction under International Law, 17 Melb.

J. Int'l L. 445 (2016). 18 World Bank and Food and Agriculture Organization of the United Nations, The Sunken Billions: The

Economic Justification for Fisheries Reform (2009) 5 ('The Sunken Billions'). See also Food and

Agriculture Organization of the United Nations, Fisheries and Aquaculture Economics and Policy

Division, Fisheries Management: Managing Fishing Capacity (FAO Technical Guidelines for Responsible

Fisheries, No 4, Supp 3, 2014) ('FAO Technical Guidelines'). 19 The terms 'fishing capacity' and 'fishing effort' are subject to much debate and have different meanings

for fisheries scientists, fisheries managers and economists: FAQ Technical Guidelines, above n 15, 9-13.

See also J M Ward et al, 'Measuring and Assessing Capacity in Fisheries: Basic Concepts and

Management Options' (Technical Paper No 433/1, Food and Agriculture Organization of the United

Nations, 2004). The FAO has defined 'fishing capacity' to mean 'for a given resource condition, the

amount of fish (or fishing effort) that can be produced over a period of time (eg. a year) by a vessel or a

fleet if fully utilized': FAO Technical Guidelines, citing Food and Agriculture Organization of the United

Nations, Report of the Technical Consultation on the Measurement of Fishing Capacity (FAO Fisheries

Report No 615, 2000). See also Healthy Fisheries Report, ; Gareth Porter, Analysing the Resource Impact

of Fisheries Subsidies: A Matrix Approach (United Nations Environment Program, 2004) 16 ('UNEP

Report'). 'Fishing effort' has been defined as 'the degree to which fishing capacity is actually employed'

(the product of fishing capacity and fishing activity): Healthy Fisheries

Report. 20 The Sunken Billions, citing International Centre for Trade and Sustainable Development, 'Fisheries,

International Trade and Sustainable Development' (Policy Discussion Paper, 2006). 21 Margaret A Young, 'Fragmentation or Interaction: The WTO, Fisheries Subsidies and International

Law' (2009) 8 World Trade Review 477, 478. See also Anja von Moltke (ed.) Fisheries Subsidies,

Sustainable Development and the WTO (Earthscan, 2011) 10.

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rules regulating the regulation of fisheries subsidies.22 Countries have started to submit

proposals that run the gamut from complete eradication of government subsidies to

removing only subsidies that contributes directly towards overfishing.23 The subsequent

2005 WTO Ministerial Conference in Hong Kong24 reaffirmed the need to strengthen

such disciplines by prohibiting certain forms of fishing subsidies which contribute to

overcapacity and overfishing. The Hong Kong Ministerial Declaration calls on

Members to act promptly on certain kinds of fisheries subsidies contributing towards

overfishing and overcapacity. The Negotiating Group on Rules has since explored

thoroughly the nature of the subsidies and how to control them. In defining the scope

of prohibitions whether to adopt a bottom-up approach (Specific list of Prohibited

Subsidies) or a top down approach (broad based prohibition with certain exceptions)

has long been significantly divergent among WTO members. There has been no

breakthrough at the WTO, however, because of differences of opinion among member

states. In the current fisheries negotiations at the WTO, the members are working

towards developing a set of rules to discipline fisheries subsidies. Developed country

members of WTO, advocating sustainability of the fisheries resources have posed a

vital concern on the depletion of the fisheries resources. The WTO negotiations on

fisheries disciplines have been complicated, with the significant issue being how to

address significant policy concerns of WTO members, especially developing countries

and LDCs.25 Since the United Nations Sustainable Development Goals (SDGs) has

adopted, there has been a renewed impetus at the multilateral level to address

unsustainable practices in the fisheries sector.

As a member of the World Trade Organisation, India is one of the active participants

in the WTO fisheries subsidies negotiations. Given that the fisheries sector is critical

for food security, employment and poverty eradication efforts, it is crucial that India

clearly express its development concerns at the WTO fisheries subsidies negotiations.

22 See World Trade Organization, Ministerial Declaration of 14 November 2001, WT/MIN (01)/DEC/1,

41 I.L.M. 746, 750 (2002) [hereinafter Doha Declaration] (declaring the conclusions reached in

negotiations by the World Trade Organization ("WTO") at the Doha Ministerial Conference). 23 Id 24 The Hong Kong Ministerial Declaration which calls on Members to act promptly on certain forms of

fisheries subsidies that contribute to overfishing and overcapacity 25 WTO, Introduction to Fisheries Subsidies in the WTO, available at

https://www.wto.org/english/tratop_e/rulesneg_e/fish_e/fish_e.h tm (last accessed 23/5/2020)

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RESEARCH OBJECTIVE

This study intends to search for the main important issues for India in the WTO fisheries

subsidies negotiations, especially from food security, employment and poverty

eradication perspective.

HYPOTHESIS

A blanket ban on fisheries subsidies without fine-tuning the requirements and

circumstances of developing and least developed countries including India can have

detrimental effects on the Indian domestic fisheries sector especially from food

security, employment and poverty eradication perspective.

METHODOLOGY ADOPTED FOR THE STUDY

The method used in this research is purely doctrinal.

RESEARCH QUESTIONS

What is the structure and significance of Indian fisheries sector, especially from food

security, employment and poverty eradication perspective?

What are the different kinds of subsidies provided in the Indian fisheries sector?

What is the scope of the conservation and management obligations under the United

Nations Convention on the Law of the Sea (UNCLOS) and other international legal

instruments on fisheries?

What is the current status of the WTO fisheries subsidies negotiation?

OUTLINE OF CHAPTERS

Chapter 1- This Chapter shall contain a brief introduction to the area of study, its

relevance and significance, the research problem, research questions and literature

review conducted concerning this research.

Chapter 2 - The second Chapter discusses Developments in WTO Fisheries Subsidies

Negotiations starting from the Doha Ministerial Conference (2001) towards the

ongoing negotiations. The chapter also examines the proposals and suggestions put

forward by both the developed and developing nations.

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Chapter 3 - After the discussion on the current status of fisheries subsidies negotiations

at the WTO the third chapter shall contain principal International Legal Instruments on

Fisheries management such as United Nations Convention on Law of Sea, UN Fish

Stocks Agreement, Food and Agriculture Organization Code, Regional Fisheries

Management Organization etc. The chapter also shed light on the law of Access to

Resources at various Maritime zones such as territorial waters, continental Shelf and

High seas. The chapter also discusses the interconnectivity between Sustainability and

Fisheries Subsidies Perspectives.

Chapter 4 – The fourth Chapter focuses on Indian Fisheries, its Landscape and the

Current Regulatory Environment. This chapter mainly focuses on Development

Concerns and Subsidies Scenario. This chapter proposes special, and Differential

Treatment for least developed and developing countries.

Chapter 5 - The Fifth Chapter discusses on sustainable use of fisheries resources. This

chapter depicts the United Nations Sustainable Development Goal 14 and its

interconnectivity with other Sustainable Development Goals (SDGs).

Chapter 6 - The summary, conclusions and recommendations is provided in the sixth

and final chapter of this Dissertation.

LITERATURE REVIEW

The negative impact of the fisheries subsidies and its contribution towards

overexploitation and overfishing is discussed, and a significant amount of literature has

been written on it highlighting the problems of developing and Least Developed

Countries (LDCs) owing to the sweeping ban of fisheries subsidies.

Margaret Young26 , in her book 'Trading Fish, Saving Fish' discussed the

overexploitation of fisheries resource. She addressed environmental concerns such as

biodiversity conservation through a series of Multilateral Environmental Agreements

known collectively as MEAs. The use of ocean resources was negotiated under the 'rule

of the sea' in various instruments, resulting in the United Nations Convention on the

Law of the Sea (UNCLOS) and related agreements. She also referred to the fisheries

subsidies negotiations at the World Trade Agreement. She also insisted the Special and

26 Margaret A. Young, The Negotiation of WTO Rules on Fisheries Subsidies, in TRADING FISH,

SAVING FISH: THE INTERACTION BETWEEN REGIMES IN INTERNATIONAL LAW , 85–133

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Differential Treatment to developing and Least Developed Nations in terms of fisheries

subsidies. She concluded that the total ban of fisheries subsidies would negatively affect

their economy.

Tracey M. Price27, in his article 'Negotiating WTO Fisheries Subsidy Disciplines: Can

Subsidy Transparency and Classification Provide the Means towards an End to the Race

for Fish,' expressed his concern about overcapacity which contributes towards the

decline of fish stocks. The article also analyses the positions of member states including

Friends of fish, European Commissions view, Japan's view, small and vulnerable

coastal views on fisheries subsidies. The article speaks for negotiating deadlock for

fisheries subsidies including the modification of the definition of subsidies under the

WTO's Agreement on Subsidies and Countervailing Measures.

Yenkong Nganjoh Ho du & Xuan Gao 28 in their article discusses the concerns of Small

and Vulnerable groups on Fisheries subsidies. As its name suggests, the WTO Doha

Development Round negotiations expected to improve the current global trade regime

in the way of enhancing the interest of developing country members. Such a

developmental objective was also confirmed in the Ministerial Declarations in Doha

and Hong Kong as a legal mandate. Chair's Draft (Chair of the Committee on Trade

Negotiations) and the proposals made by some WTO Members, have failed to

adequately recognise the importance of the fisheries sector to developing Member

States. The total ban of subsidies would affect the people of developing Countries in

terms of poverty reduction, food security and livelihood. This paper examines the

ongoing negotiations on trade rules in detail. It explores the potential negative impacts

that they could have on SVEs, presents a series of counter measures to strike a balance

between prevention of overfishing and the development priorities of SVEs.

Margaret A. Young29 in her Article' Fragmentation or interaction: the WTO fisheries

subsidies and international law' expressed that fishing subsidies have trade and

ecological implications, in particular for over-exploited fisheries. To confront this

issue, WTO members are negotiating to clarify and improve the Subsidies and

27 Tracey M. Price, Negotiating WTO Fisheries Subsidy Disciplines: Can Subsidy Transparency and

Classification Provide the Means towards an End to the Race for Fish, 13 Tul. J. Int'l & Comp. L. 141

(2005). 28 Yenkong Nganjoh Hodu & Xuan Gao, Implications of Concluding the WTO Doha Round

Fisheries Subsidies Negotiations on SVEs, 6 Manchester J. Int'l Econ. L. 93 (2009). 29 Margret A Young ‘‘Fragmentation or interaction: the WTO fisheries subsidies, and international law’

(2009)

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Countervailing Measures Agreement. However, this ongoing effort is constrained by

significant legal challenges as fisheries conservation, and management issues are often

dealt with by the United Nations Convention on the Law of the Sea, Food and

Agriculture Organization instruments, and other legal regimes that some WTO

members have not agreed to. This article analyses modes of learning and information

exchange within the WTO regime and compares the proposed use of standards,

benchmarks, and peer review in the draft fisheries subsidies rules with existing

arrangements between the WTO and other organisations such as the OECD and product

standard-setting bodies. The article also points out that to resolve the impediments

posed by International law's fragmentation more deliberative strategies of regime

interaction are required other than adherence to strict mandates or legal hierarchies.

Oliver Delvos30 , in his article, considers the negotiations concerning a potential

alteration of the World Trade Organization (WTO) Agreement on Subsidies and

Countervailing Measures (SCM Agreement) concerning fishing subsidies. The Doha

Ministerial Conference of 2001 gave the mandate for those negotiations. The current

WTO rules are deficient in that many of the subsidies do not meet specific SCM

Agreement criteria. This is primarily because of the current definition of the

subsidy, specificity requirements and inadequate categorisation of subsidies for the "red

box" and the "amber box." To properly fix fishing subsidies, this article claims that the

SCM Agreement needs to be updated. The United States, the European Community,

many developing countries and Japan are actively debating this issue. After examining

the various proposals, the best solution seems to be to find a standard categorisation for

subsidies for fisheries and identify those that lead to over-capacity and over-fish. These

subsidies should be banned and placed on an illustrative list. Besides, subsidies which

are not reported to the WTO should be actionable. Any country that has not conducted

its notification duties will bear the burden of showing that such subsidies comply with

the SCM Agreement. The article also suggests that under new WTO rules, subsidies

which are suitable for the environment should be allowed, such as subsidies for the

retirement of fishing licenses, the retraining offishers and the scrapping of old vessels.

30 Oliver Delvos, WTO Disciplines and Fisheries Subsidies - Should the SCM Agreement Be

Modified, 37 Victoria U. Wellington L. Rev. 341 (2006).

21

Derek J. Dostal31 , in his article, discusses the fisheries subsidies and its contribution

towards the overexploitation and overfishing. He analyses various proposals submitted

by member nations. The present lack of fisheries regulations for fisheries subsidies is

the reasons for this disaster. He identifies The WTO's elimination of those subsidies

that contribute to overcapacity is a necessary and critical first step in rectifying the

overfishing problem. Eradication of subsidies is but the first step in redressing

overfishing issue. Once the WTO tackles the issue of subsidies, the next-and perhaps

more difficult-hurdle will be to allocate fishing rights among individual nations to the

oceans of our world.

Amanda Rologas Tsangalis32 , in his article, describes the role of fisheries subsidies

under Trans-Pacific Partnership. The recently concluded Trans-Pacific Partnership

('TPP')'s much anticipated Environment Chapter includes provisions prohibiting

members from granting certain subsidies to their fishing industries and calls for

significant fisheries management systems to be implemented. Such provisions represent

a significant step forward for the protection of fisheries and come at a time when the

oceans of the world face severe challenges from overfishing and over-exploitation of

marine resources. While there is a strong link between overfishing and certain types of

subsidies, despite numerous draft proposals, established competing economic, political

and developmental interests hampered efforts by the World Trade Organization

members to agree on effective disciplines in this area. It appears that TPP members

have drawn on some of these Proposals to formulate their own fisheries subsidy

disciplines, to overcome, in some respects, the further challenge of 'regime interaction'

by incorporating the standards and concepts of fisheries management set out in the

United Nations Convention on the Law of the Sea and the United Nations Food and

Agriculture Organization. In its analysis of the provisions on fisheries subsidies of the

TPP, this article shows that while there is certainly scope for improvement and firmer

disciplines in this area, the current provisions provide a strong basis from which to

move towards the eventual elimination of all forms of fishing subsidies which

contribute to overfishing.

31 Derek J. Dostal, Global Fisheries Subsidies: Will the WTO Reel in Effective Regulations, 26 U. Pa.

J. Int'l Econ. L. 815 (2005). 32 Amanda Rologas Tsangalis, Fisheries Subsidies under the Trans-Pacific Partnership: Towards

Positive Outcomes for Global Fisheries Sustainability and Regime Interaction under International Law,

17 Melb. J. Int'l L. 445 (2016).

22

CHAPTER II

DEVELOPMENTS IN FISHERIES SUBSIDIES NEGOTIATIONS

"Recognizing that their relations in the field of trade and economic endeavour

should be conducted …while allowing for the optimal use of the world's resources in

accordance with the objective of sustainable development, seeking both to protect and

preserve the environment...33

2.1 INTRODUCTION

Oceans are essential to human sustenance as they are providing many provisioning and

supporting services. They have been a source of vast resources for humanity. Among

the various resources offered by the oceans, the fish has perhaps made the most

significant contribution to the development of the human condition. The Principal and

known use of fish is as a food for human consumption. Fish is important component of

food security around the world. It is also an essential source of animal protein and

contains vitamins and minerals.

Moreover, they are converted into fishmeal or oil and used as a fertilizer and animal

feed. The great Jewish philosopher Maimonides once said, "Give a man a fish, and you

feed him for a day; teach a man to fish, and you feed him for a lifetime34. This statement

depicts the importance of fisheries in the modern context, as fish and fishing have

provided millions around the world livelihood and employment. Marine and inland

fisheries, together with Aquaculture, provide food, Nutrition and a source of income to

around 820 million people around the world from harvesting, processing, marketing

and distribution35.

Global fisheries are under the threat of depletion. Suppose the human activities are not

carefully managed to ensure that they do not alter ecosystem structure and function. In

that case, they may result in damage to the marine environment and reduction or loss

of vital ecosystem services36. Over the last few decades, one-third of the world's fish

33 Marrakesh Agreement Establishing the World Trade organization 1994, Preamble. 34 Kenneth Seeskin, Maimonides, The Stanford Encyclopaedia of philosophy (Spring 2014 ed) 35 ‘’ FAO’s Role in Fisheries’’ as available at http://www.fao.org/fisheries/en/ (Last visited January

13,2020) 36 UN-a technical abstract of the first global integrated marine assessment. ‘The ocean and the sustainable

development goals under the 2030 agenda for sustainable development’

23

stock is regarded as overfished. Advancement in science and technology has resulted

in the improvement in fishing gears used for locating, fishing and processing Fish. This

has been especially true after the Second World War when there was a tremendous

advancement in shipbuilding technology which was why industrial fishing started to

spread like wildfire.37 .Many states lack tools and techniques for robust assessment,

development and effective management of their fisheries. 57% of fish stocks are fully

exploited and other 30%are overexploited or recovering38. Fisheries industries are at

the mercies of the environment. Excessive fishing can lead to a reduction in the size of

fishery resources and also changes the species structure of those organisms that they

prey on them39. The exploitation and conservation of marine living resources (MLR) is

a question of utmost relevance for a global society, given the importance of MLR as a

source of protein for human consumption and dependence of many local communities

upon fishing40.

2.2 OVERVIEW OF SUBSIDIES

The practice of government providing financial assistance to sectors of the economy or

directly to private companies to protect infant industries or encourage economic

development in a given region has been in existence for many centuries.41 The

government was always trying to subsidize every sector. At one time, one could claim

in the US congress that 'the definition of a subsidy, like that of beauty, varies with the

beholder whose eye is focused on the object under scrutiny.42 An open-minded beholder

could detect subsidies everywhere in governmental actions. A creative observer could

even label the negative actions by the government as a 'regulatory subsidy' when this

government refrains from providing a certain level of regulation43. So the range of

37 ‘’Ships and Shipbuilding”, as available at http://www.fao.org/fisheries/en/ (Last visited on January

11,2020) 38 The state of World fisheries and aquaculture: opportunities and challenges, Food and Agricultural

Organization2016 39 John S Gray, Marine Biodiversity: Patterns, threats and Conservation Needs (Jan,21,2020)

<http://www.avesmarinhas.com.br/20%20-

20%marine%20biodiversity%20%20%patterns,%20threats%20and.pdf> 40 The Oxford Handbook of the law of sea 491 (1st ed2015) 41 C-J Chen, Fisheries Subsidies under International Law, Hamburg studies on Maritime Affairs 20, DOI

1007/978-3-642-15693-9_1 Springer – Verlag Berlin Heidelberg 2010 42 US Congress, House Committee on Agriculture,1972 cited by Dominic Coppens ‘WTO Disciplines

on Subsidies and Countervailing Measures, Balancing policy space and legal constraints 608(1sted 2014) 43 Dominic Coppens ‘WTO Disciplines on Subsidies and Countervailing Measures, Balancing policy

space and legal constraints 608(1sted 2014)

24

subsidies would vary depending upon the views of the beholder on the market and the

government.

2.3 DEFINITION OF FISHERIES SUBSIDIES

Fisheries subsidies are the subsidies which are confined to the fisheries sector.

Westlund (2003) defined fisheries subsidies as "government actions or inactions that

are specific to fisheries industry, and that modify by increasing or decreasing –the

potential profits by the sector in the short, medium or long term.44Many International

Organizations, including FAO and OECD, have attempted to define fisheries subsidies.

FAO developed the "Guide for Identifying, Assessing and reporting on fisheries

subsidies. As per the definition given under this Guide fisheries subsidies are

government actions or inactions beyond regular practices that, by increasing or

decreasing them, modify the potential profit of the fisheries industry in the short,

medium or long term.45 OECD defines the government Financial Transfers (GFTs) as

the monetary value of interventions associated with fishery policies, whether they are

from central, regional or local levels.46

2.4 SUBSIDIES UNDER WTO

The origins of the current SCM Agreement can be traced back from articles VI and XVI

of the General Agreement on Tariffs and trade 1947.47Later in Tokyo Round, these

provisions were summarized as the Subsidies Code of 1979. During the Uruguay round

of negotiation, the present version of Agreement was framed. To classify the subsidies,

the SCM Agreement uses a traffic light approach, which means that subsidies are

categorized in three parts as prohibited (red box subsidy), actionable ("amber" box

subsidy) and permitted ("green box" subsidy). SCM Agreement will apply if only the

requirements outlined in Article 1 and Article 2 is fulfilled.

Article 1of the SCM Agreement provides that a subsidy exist when there is a financial

contribution by a government or any public body within the territory of a member that

44 Aswathy N and Shyam. S. Salim, Subsidies in Indian Fisheries, Manual on World Trade Agreements

and Indian Fisheries Paradigms, A Policy Outlook (2012) 45 FAO Doc. FAO Fisheries Technical Paper No .48, at 78 adding that “government” here means

government and public bodies other than the ones in the country where the subsidy as such exist,

including contributions from public and international development aid and cooperation institutions, and

actions or inactions by non-fishery government agencies and organizations. “Fisheries industry” refers

to all productive sub-sectors of the fisheries and aquaculture sector, processing and marketing. The term

potential profit means the overall profitability of the industry. 46 OECD Doc. No AGR/FI (93)11 REV1 47 General Agreement on Tariffs and Trade (30 October 1947)55 UNTS187, Arts VI and XVI

25

confers a benefit.48 Accordingly, a subsidy is deemed to exist when a benefit is

conferred on an industry as a result of (1) direct transfer by the government of funds

(e.g. Grants, loans and equity infusion)or potential direct transfers of funds or liabilities

(e.g. loan guarantees);(2) foregone or uncollected government revenues(e.g. fiscal

incentives such as tax credits);(3)when government provide goods or services other

than general infrastructure or purchases goods;(4)when the government makes funding

mechanism or to a private body to carry out any of the functions described above; or

(5)when there is a form of income or price support in the context of Article XVI of

GATT 1994.49

So under the SCM Agreement, any government aid including the direct transfer of

funds, goods and services, must meet the criteria of subsidy.50 This also includes the

case where a government does not demand revenues, such as taxes which it is obliged

to collect.51 Moreover, a subsidy shall have deemed to exist if there is any form of

income or price support in the sense of GATT 1994.52 Moreover, a subsidy must also

meet the criterion of specificity mentioned under Article 2 of the SCM Agreement. As

per this Article, a subsidy must be granted to a certain enterprise.53If a subsidy does not

meet this criterion under Article 2 of the SCM Agreement, there are other explicit

circumstances under which specificity can be assumed.54Subsidies under the SCM

Agreement are allocated to three different boxes: the "red box", "green box" and the

"amber box". The red box contains all subsidies that are prohibited under article 3 of

the SCM Agreement and are contingent on export performance. They can also be

deemed to be having an export performance if they are "in fact tied to actual or

anticipated exportation or export earnings.55 "Illustrative list of Export subsidies"

48 WTO Doc. No. WT/DS70/AB/RW, “Report of the Appellate Body, Canada-Measures Affecting the

Export of Civilian Aircraft” (21st July 2000), para.9.96 49 See Article 1 of SCM Agreement. 50 Agreement on subsidies and Countervailing measures 15 April 1994)1867 UNTS 14 [SCM

Agreement] Arts1.1(a)(1)(i) and 1.1 (a)(1)(iii) 51 SCM Agreement art 1.1 (a)(1)(ii) 52 SCM Agreement art 1.1(a) (2); General Agreement on Tariffs and Trade (15 April 1994)1867

UNTS187. 53 SCM Agreement 4, art 2.1(a) 54 Article 2.1(c)of the SCM Agreement provides such factors, which are: “the use of a subsidy programme

by a limited number of certain enterprises, predominant use by certain enterprises, the granting of

disproportionately large amounts of subsidy to certain enterprises, and the manner in which discretion

has been exercised by the granting authority in the decision to grant a subsidy…..Account shall be taken

of the extent of diversification of economic activities within the jurisdiction of the granting authority, as

well as of the length of time during which the subsidy programme has been in operation. 55 Mistuo Matsushita, Thomas J Schoenbaum and Petros C Mavroidis, the World Organization: Law

Practice and Policy 273(Oxford University Press, Oxford,2003)

26

provided in Annex I of the SCM Agreement fall under this regulation. Besides that,

subsidies that are contingent upon the use of domestic goods over imported goods are

prohibited.56 Actionable subsidies, are also known as amber box subsidies, are those

that cause injury to the domestic country of another member country or cause "serious

prejudice" to the interest of another member.57 That means they are assessed according

to the injury to another member's domestic industry. "Serious prejudice" under article

5(c) of the SCM Agreement as defined under article 6.3 of the SCM Agreement.58 The

nullification or impairment of benefits of another member is a condition precedent for

classifying a subsidy as actionable subsidy. The green box, which includes subsidies

for the adaptation of existing facilities to environmental sustainability, has been struck

down from the SCM Agreement.59

The growing Fish stock depletion due to overfishing or overcapacity is described as one

of the defining environmental challenges of our time60. Government provided fisheries

subsidies which resulted in overfishing and overcapacity, are one of the reasons for the

depletion. The majority of fisheries subsidies are granted by a handful of economically

powerful nations in a wide variety of forms, including direct government payments to

the fishing industries, tax waivers and deferrals, government loans and loan guarantees,

and general programs that affect fisheries.61Owing to the unique nature of negative

impacts of fisheries subsidies Agreement on subsidies and countervailing measures fail

56 SCM Agreement art 3.1(b) 57 SCM Agreement art.5(a) 58 Until the end of 1991, Article 6.1 of the SCM Agreement contained four circumstances under which a

“serious prejudice” was deemed to exist. Today, article 6.3states the following:

Serious prejudice in the sense of paragraph (c) of article 5 may arise in any case where one or several of

the following apply:

(a) the effect of the subsidy is to displace or impede the imports of like products of another Member

into the market of the subsidizing member.

(b) The effect of the subsidies to displace or impede the exports of a like products of another Member

from a third country market;

(c) The effect of the subsidy is a significant price undercutting by the subsidized product as

compared with the price of a like product of another Member in the same market or significant

price suppression, price depression or lost sales in the same market;

(d) The effect of the subsidy is an increase in the world market share of subsidizing Member in a

particular subsidized primary product or commodity as compared to the average share it had

during the previous period of three years and this increase follows a consistent trend over a period

when subsidies have been granted. 59 See SCM Agreement Art.8, 9. The green was adopted on a provisional basis for a period of 5 years:

SCM Agreement, Art.31. when it expired on 31st December 1999, a lack of consensus among WTO

members meant that it was not renewed. 60 Sadeq Z. Bigdeli, Will the Friends of Climate Emergence in the WTO: The prospects of applying the

fisheries subsidies model to energy subsidies,2008 carbon &Climate L. Rev 78(2008) 61 Chen, supra,1

27

to address fisheries subsidies issues adequately. Due to the lack of consensus between

the member countries, an attempt to incorporate fisheries issue in the Uruguay Round

Negotiations as part of Agreement on Agriculture was abandoned. However, since the

adoption of SCM Agreement, the definition of subsidies has got narrowed.

Overfishing refers to a level of fishing effort or fishing mortality such that a reduction

of this level would, in the medium term lead to an increase in the total catch.62 For long-

lived species, overfishing starts well before the stocks become overfished.63Fishing

capacity' has been defined as 'the amount of fish (or fishing effort) that can be produced

over a while (such as a year or a fishing season) by a vessel or a fleet if fully utilized

and for a given resource condition.64 The tremendous increase in the overcapacity

ultimately results in overfishing. The fishing industry is one which incurs the huge

expense. So the fisheries sector is financially supported by the States. Many subsidies

are for management and conservation while others are directed to increase overcapacity

alone. The government also decides to provide subsidies to the fishing sector to increase

their capacity to compete against other states, especially in accessing fish from the High

Seas65. Government provided subsidies enable unprofitable fleets to continue fishing.

Acknowledging Fisheries subsidies constitute a significant cause of overfishing, so the

states began to delimit their subsidies payment. Firstly, States turned their effort

voluntary policies within WTO. These measures met with mixed success lending to

reform efforts within the WTO regime that can offer binding discipline.

The current WTO Regulations are deficient, in that many subsidies do not meet certain

criteria of the SCM Agreement66. There are many problems with the current version of

the WTO Agreement on Subsidies and Countervailing Measures (SCM Agreement).

To be prohibited, subsidies must be specific and must generally have a distorting effect

on international trade67. Usually, fisheries subsidies do not meet these criteria under the

SCM Agreement. Fisheries subsidies are not covered under the WTO's Agreement on

Agriculture and the Agreements on Subsidies and Countervailing Measures. Therefore,

62 AN_TDP_2017_5_The-WTO’S-Fisheries-subsidies -Negotiation 63 FAO Term Portal, http://www.fao.org/faoterm/en/ 64 FAO Fisheries Report No. 613, Report of the Technical Consultation on the Measurement of Fishing

Capacity, (FAO, 2000) 65 Margaret A. Young Trading Fish, Saving Fish (1st ed.2011) 66 Oliver Delvos, WTO Disciplines and Fisheries Subsidies - Should the SCM Agreement Be

Modified, 37 Victoria U. Wellington L. Rev. 341 (2006). 67 Id

28

the existing definition of a subsidy must be modified to cover fisheries subsidies.

Besides, the categorization of prohibited and actionable subsidies must be restructured

include fisheries subsidies. This proposal was seconded by the "Friends of Fish", who

also opined that the fisheries sector has unique features that cannot be addressed by the

existing rules of the SCM Agreement. It is to be noted that SCM Agreement does not

contain a preamble which might indicate that there was a divergent view among drafters

while drafting the SCM Agreement.68

2.5 FISHERIES SUBSIDIES AND WTO NEGOTIATIONS

2.5.1 Doha Ministerial Conference

The World Trade Organization agreed to conduct negotiations for fisheries subsidies at

Ministerial Conference in Doha.69The guiding principle of the Doha Round

Negotiations since its launch in 2001 has been to reshape the development paradigm in

favour of the developing and least developed country (LDC) members of the WTO

through trade70. Since it mainly focuses on developmental concerns, it is also known as

the Doha Development Agenda. Doha Ministerial Declaration directed WTO Members

to enter into negotiations aiming at clarifying and improving WTO disciplines on

fisheries subsidies, taking into account the development interests of developing

countries in this sector.71 This Conference set forth the mandate on fisheries subsidies

as follows:

"……participants shall also aim to clarify and improve WTO disciplines on fisheries

subsidies, taking into account the importance of this sector to developing countries".72

At the Ministerial Conference in Doha in 2001, the World Trade Organization (WTO)

agreed to conduct negotiations for special fisheries disciplines. Some Member Nations

pointed out that the special treatment of this sector would lead to fragmentation.

68 Columbia Studies in WTO law and Policy “Law and Economics of Contingent Protection in

International Trade; Robert Howse “Subsidies and Countervailing Measures: Determining benefits of

Subsidies 103(1st ed. 2010) 69 WTO Ministerial Declaration at Ministerial Conference, Fourth Session (WT/MIN(01)/DEC/1,Doha,

2001) 70 Yenkong Ngangjoh Hodu; Xuan Gao, Implications of Concluding the WTO Doha Round Fisheries

Subsidies Negotiations on SVEs, 6 Manchester J. Int'l Econ. L. 93 (2009). 71 Id 72 WT/MIN (01)/DEC/1 (November 20,2001) n 36.

29

Meanwhile, both NGOs and IGOs have raised the issue of fisheries subsidies by some

developed and developing countries to come together in a new coalition, known as the

"Friends of Fish" (FOF)73, to lead the effort in bringing the issue of fisheries subsidies

to the WTO negotiating agenda.74 In 2001, these efforts were realized when the WTO

Ministerial Members at the Doha Ministerial Conference, at Qatar agreed to conduct

negotiations on clarifying and improving WTO disciplines on fisheries subsidies "in

the context of" negotiations on 'WTO Rules'. Members at Doha decided on two points.

First, fisheries subsidies which have a negative impact on the environment should be

regulated; second, it is necessary to introduce a new set of rules to regulate fisheries

subsidies effectively.75 Trade negotiation committee established the Negotiating Group

on Rules in February 2002. Hence, negotiations on fisheries subsidies organized and

became one of the core points of the agenda of the WTO Negotiating Group on Rules

in the Doha Round.76 Moreover, WTO Members have identified the inadequacy of the

SCM Agreement in restraining fisheries subsidies. The connection between the trade-

distorting and harmful fisheries subsidies has been restated in the course of

negotiations.

2.5.2The Hong Kong Ministerial Conference

Hong Kong Ministerial Conference of trade ministers in 2005 states that:

"Ministers recall their commitment at Doha to enhancing the mutual supportiveness of

trade and environment, note that there is broad Agreement that the Group should

strengthen disciplines on subsidies in the fisheries sector, including through the

prohibition of certain forms of fisheries subsidies that contribute to overcapacity and

over-fishing, and call on Participants promptly to undertake further detailed work to,

inter alia, establish the nature and extent of those disciplines, including transparency

and enforceability. Appropriate and effective special and differential treatment for

73 WTO negotiating Group on Rules the Doha Mandate to Address Fisheries Subsidies: Issues,

submission from Australia, Chile, Ecuador, Iceland, New Zealand, Peru, Philippines and the United

States (TN/RL/W/3, Geneva, 2002) paras 12-16 [Doha Mandate]. United States, Philippines, Peru, News

Zealand, Australia, Chile, Ecuador are named as the “Friends of Fish” because in the WTO Negotiation

Group on Rules these countries submitted the views together. They insist on stricter fishing rules and

regulations. 74 Adijaya Yusuf; Melda Kamil Ariadno; Arie Afriansyah, Legal Framework and Mechanism of Marine

Fisheries Subsidies in the Aspects of International Trade and Sustainable Development, 5 Indon. L. Rev.

291 (2015) 75 Youngjeen Cho, revisiting WTO Fisheries Subsidies Negotiation, 6 Beijing Law Review 9,12(2015) 76 Id

30

developing and least-developed Members should be an integral part of the fisheries

subsidies negotiations, taking into account the importance of this sector to development

priorities, poverty reduction, and livelihood and food security concerns77.

At WTO's Fifth Ministerial Conference (Hong Kong, 2005,) members reaffirmed their

commitment to strengthen disciplines on Fisheries subsidies. Moreover, they mandated

Chairman of the Negotiating Group on Rules to prepare a consolidated text which

would be the basis for future negotiations.

The Hong Kong Declaration intends to prohibit fisheries that contribute to overcapacity

and overfishing. The friends of fish sought a comprehensive list of the prohibition of

subsidies, with limited exception, as well as improved fisheries management program

that contributes to overcapacity and overfishing78. The Hong Kong Declaration paved

away for intense negotiation on the Fisheries subsidies leading to the Chair of the

Negotiating Group on Rules to prepare a draft proposal. To effectively direct the

negotiators, the duty of the Chair of the Negotiating Group on Rules as an interpreter

is to examine the ministerial mandate to determine the common intentions of the parties

before coming up with a roadmap for discussions79.

The Hong Kong mandate was to identify the types of subsidies that are to be prohibited

and special and differential treatment for developing countries.

2.5.3PROPOSALS OF WTO MEMBERS

2.5.3.1 Proposals of the United States

Even before the Doha declaration in 2001, the United States submitted a statement

pointing out that subsidies have their worst environmental effect in open-access

fisheries.80 The United States' proposal calls on WTO members to eradicate all

subsidies that contribute to overfishing.81 United Nations adopted a modified version

77 WT/MIN (05)/DEC (adopted on 18 December 2005), Annex D, Para. 9. 78 WTO Fisheries Subsidies Negotiation, Main issues and interest of least developed countries, smriti

bahety, Julian Mukiibi1,9 (2017) 79 The issue of giving meaning to the common intensions of WTO Members has been pointed out by

the WTO Appellate Body in its jurisprudence. See for instance, the Report of the Appellate Body in

Indian- patent (US), WT/DS50/AB/R, para. 45 80 WTO Committee on trade and Environment Environmentally-Harmful and trade- Distorting Subsidies

in Fisheries-Communication from the United States (WT/CTE/W/154, Geneva,2000) para 9

[Communications from the United States.] 81 WTO Negotiating Group on Rules, Communications from the U.S: Possible Approaches to improved

Discipline on fisheries Subsidies.TN/RL/W/77(March 19.2003)

31

of a "traffic light" approach to defining these types of categories. United Nations

suggest that in addition to red light subsidies (prohibited subsidies) there are also dark

amber subsidies (seriously prejudicial and presumptively harmful). The US Proposal

defines its category of "red light" subsidies as those subsidies that "directly promote

overcapacity and overfishing, or have other direct trade-distorting effects.82 "Dark

amber" category of subsidies are those subsidies that would "presumed to be harmful

unless the subsidizing government could affirmatively demonstrate that no

overcapacity/overfishing or other adverse trade effects have resulted from the

subsidy83. If no such rebuttal were made by the issuing nation, these subsidies would

contravene the WTO international Agreement. An important significance of US

Proposal is notification and transparency of each Nations subsidies, and United States

urges the WTO to adopt a system in which data are readily available for member nations

to analyse and assess other nations' level of subsidies84.

2.5.3.2The European Union's Proposal

In its proposal, the European Union first defines the ultimate aim of WTO fisheries

subsidies rules: "to match capacity to the available fish and so contribute to the

sustainable exploitation of fishery resources."85 By reformation of common fisheries

policy EC has made a clear choice that adjusts objectives of its fisheries policy to ensure

sustainable development in environmental, economic and social terms. European

Union proposes also contain its proposal calls for complete eradication of subsidies

enhancing capacity which include subsidies for marine fishing fleet renewal and

subsidies for the permanent transfer of fishing vessels to third countries, including the

creation of joint enterprises with third-country partners86.Unlike the American

proposal, European Union suggests certain categories of subsidies that should be

considered permitted and therefore non-actionable. These includes:

1) Subsidies to support the retraining of fishers, early retirement schemes and

diversification.

82 Id 83 Id 84 Supra 31 85 WTO Negotiating Group on Rules TN/RL/W/82 86 Id

32

2) Limited subsidies for modernization of fishing vessels to improve safety, product

quality or working conditions or to promote more environmentally friendly fishing

methods.

3) Subsidies to fishers and vessel owners who have to temporarily stop their fishing

activity when stoppages

are due to unforeseeable circumstances such as natural disasters, or in the framework

of tie-up schemes linked

to permanent capacity reduction measures in the context of recovery plans for

overexploited fish stocks.

4) Subsidies for the scrapping of vessels and the withdrawal of capacity.87

European Union's proposal makes an exemption for developing countries, pointing out

that a sweeping ban would have a negative impact on their economies and suggested

that subsidies should be prohibited after a short transitional period88. Above all, the

opinion of the European Community is that the SCM Agreement is inadequate to deal

with the current situation in the fisheries sector. Though slightly more than other

nations, the EC believes that the current SCM Agreement should be the basis for new

disciplines.89However, EC does not recommend the restrictive approach as the U.S.90

The EU is proposing two steps: a review of the semi-annual CVD reports of the

members to assess if notifications have been made, and the preparations of notifications

by the Secretariat when subsidies have not been notified.91

2.5.3.3Chinese proposal92

The proposal put forward by China suggests that certain subsidies should not be

prohibited, After China demanded that subsidies for infrastructure construction and

scientific research should be allowed, the submission of the EC in2003 started to debate

whether certain subsidies should be expressly permitted. It is doubtful whether china

87 id 88 id 89 WTO Negotiating Group on Rules Submission of the European Communities to the Negotiating

Group on Rules –Fisheries Subsidies (TN/RL/W/12, Geneva ,2000) 90 In fact, no statement is made regarding the “broad ban” approach. It is not even mentioned at all. 91 WTO. 2015a. “Rule Negotiations – Transparency: Communication from the European Union.”

Negotiating Group on Rules. TN/RL/W/260. 16 July. 92 WTO negotiating Group On Rules, Proposal from the People’s Republic of China On Fisheries

Subsidies (TN/RL/W/9, Geneva,2002

33

being the largest producer of fish commodities would support harsh disciplines on

fisheries.

2.5.3.4 Japanese proposal

The supporters for the prohibition of fisheries subsidies include politically and

economically important members. They are demanding for the new and improved

fisheries disciplines. Even if the supporting side is firm, the nations which are against

any modification of the SCM Agreement should not be undermined. Japan is strongly

opposing the modification of the fisheries sector. Japan contends that the fisheries

sector should not be treated separately from other industrial sectors.93Japan points out

that "any casualty between fisheries subsidies and trade distortion has yet been

presented"94. It upholds that it is important to realize the conservation and sustainable

development of fisheries to secure food sources for sustainable development. Japan also

used fisheries traffic light approach to distinguish between the subsidies but presented

it in a manner different from the United States and European Union. Under its green

light category, it enumerates the fisheries subsidies that promote the conservation and

sustainable utilization of fisheries resources95. It includes the fisheries subsidies for

research on; enhancement of fisheries resources for the "conservation and improvement

of the habitat of fisheries resources;" for the monitoring, control, and surveillance of

fisheries resources; for the "development and diffusion of new technologies to reduce

the catch of unintended small fish or untargeted species;" and for the "protection of

[the] environment96. Japan proposes a definition of red light or prohibited subsidies

such as the following: illegal, unregulated, and unreported ("IUU") subsidies and those

subsidies that contribute to overcapacity. Japan proposes a definition of red light or

prohibited subsidies such as the following: illegal, unregulated, and unreported("IUU")

subsidies and those subsidies that contribute to overcapacity97. So Japan asserts that a

fisheries sector should not be treated separately from other industrial sector and current

SCM agreement is sufficient to cover fisheries subsidies. Japan argues that the United

Nations Convention on Law of Sea (UNCLOS) is a more important tool to achieve

93 WTO Negotiating Group on Rules Japan’s Basic Position on the Fisheries Subsidies Issue

(TN/RL/W/11, Geneva ,2002) para2 94 TN/RL/W/164(SEPTEMBER,27,2004) 95 Id 96 Id 97 Id

34

resource conservation. However, this argument is not questionable because UNCLOS

fails to cover high sea fisheries.98

The Republic of Korea also supported the Japanese view that there is no need to

modify the SCM agreement99. In 2003 a statement by Antigua, Barbuda, Belize, Fiji,

Guyana, the Maldives, Papua Guinea, Solomon Islands and St Kitts and Nevis

suggested that more restrictive rules on the fisheries can have a negative impact upon

their economies. But they adopted a different view from Japan and North Korea. These

coastal states do not have a capacity in fish vessels to harvest their resources. So the

government of these states permit other fleets to enter its domestic water in return of

foreign payments. Above all, it would destroy the artisanal fisheries in their countries.

The difference of opinion between the member countries began to be reflected from the

very beginning of the submissions to the NGR. The 'friends of fish' coalition sought for

a sweeping ban of fisheries subsidies covering subsidies contributing towards

overcapacity and overfishing. Countries including Japan, EU, Korea and Chinese,

Taipei resists the blanket ban of fisheries subsidies.

By 2004, members arrive at a consensus towards an environmental mandate of the

negotiation. This balanced approach resulted in the Hong Kong Ministerial Conference

in 2005.

2.5.4 2007 CHAIR'S TEXT.

On November 30, 2007, the first draft was tabled by Guillermo Valles Games, the Chair

of the Negotiating Group on Rules (NGO). The Chair's text is in the form of an annex

('Annex VIII') of the SCM Agreement and is reproduced in the Appendices.100It has a

set of prohibited subsidies along with its objectives. Specifically, the draft prohibited

the subsidies for vessel construction, repair etc. of fishing/service vessels: subsidies on

operating costs of fishing (like fuel, ice, bate, and personnel charges): Subsidies for port

infrastructure, port facilities (fish landing facilities, fish storage facilities: income and

98 United Nations Convention on the Law of Sea (10 December 1982)1833 UNTS 3, part VII, s 1, art 86-

87 and 2. In the latter section, articles 116 and article 117 deal with fisheries. Article 116 assesses the

right to fish on High Seas. Article 116 (a) states that all states have the right for their nationals to engage

in fishing on High Seas, subject to their treaty obligations. Article 117 assesses that all States have the

duty to take, or to co-operate with other states in taking, measures for their respective nationals as may

be necessary for the conservation of living resources at High Seas. 99 WTO Negotiating Group on Rules Korea's Views on the Doha Development Agenda Discussions on

Fisheries Subsidies (TN/RL/W/17, Geneva, 2002) para IV [Korea's Views on Fisheries Subsidies] 100 See Appendeix A of SCM Agreement

35

price support for products of marine wild capture fishing: Subsidies arising from the

further transfer of access rights that a payer government has acquired from another

Member government; Subsidies to vessels engaged in illegal, unreported or unregulated

fishing (IUU)101. The draft also recognized certain General Exception to those

prohibited subsidies. It includes Improving fishing vessel and crew safety; Adoption of

gear for selective fishing technique; Personnel costs related to re-education; retraining

or redeployment of fish workers; Decommissioning or capacity reduction programs102.

The draft also recognized some special and differential treatment for developing

countries including complete exceptions for LDCs. The draft also points out that

fisheries management provisions would be indicative, not mandatory and could draw

on indigenous institutions and measures.

From December 2007 to May 2008 a series of the meeting brought out the difference

of opinion among the WTO members about Chair's draft. The draft was approved by

the 'Friends of Fish' and other environmental stakeholders such as WWF103. However,

it was opposed by the countries like the U.S, Japan, and EU, and they were divided on

the question of the scope and coverage of the proposed ban. Consequently, 2007 chair's

draft failed to get a consensus of the members.

The NGR released a second set of consolidated text revising the text by the end of 2008

on subsidy disciplines and countervailing measures that reflect a "bottoms up approach

to the issue at hand. This set of Rules also failed to achieve its objective.

2.5.5 10TH WTO MINISTERIAL CONFERENCE (2015)

There was no outcome on fisheries subsidies disciplines at 10th Ministerial Conference

because three issues proved to be contentious. They are (1) a proposal to complete

negotiations on prohibition of subsidies to IUU fishing and effort on overfished stocks

within a specific trade name (2) a provision that would have required members to

commit to the best endeavour stands still provision on new subsidies in prohibited areas,

despite the inclusion of the standstill provision in the SDGs and the TPP;(3)Specific

101 TN/RL/W/213 (November 30,2007) 102 Id at 27 103 Smriti Bahety, Julian Mukiibi “WTO Fisheries Subsidies Negotiations: Main issues and interest of

countries (2017)

36

fisheries subsidy programs notification commitments under the ASCM, including

details on format, and accounting for members resources' and technical capacity104.

In a ministerial statement issued by 28 WTO members, they agreed "to seek to

reinvigorate work in the WTO aimed at achieving ambitious and effective disciplines

on fisheries, which should include, but not be limited to, prohibitions on subsidies,

which should consist of, but not limited to, prohibitions on subsidies, (a)for fishing that

negatively affect overfished fish stock; and (b) provided to vessels or operators engaged

in illegal, unreported and unregulated fishing105

2,5.5.1 SUSTAINABLE DEVELOPMENT GOAL 14

On September 2015, the 193 member states of the United Nations adopted the 2030

Agenda for sustainable development, including 17 Sustainable Development

Goals(SDG) with 169 targets and 230 indicators.

Owing to the increased Human actions oceans are in threats of marine pollution,

resource depletion and climate change. To combat these issues and to promote ocean

sustainability, WTO adopted sustainable development Goal (SDG) 14 which mainly

deals with 'life below water'. SDG 14 intends to support global, regional and local

efforts to combat environmental degradation, as well as to address the ocean

acidification. It mandates to conserve and sustainably use the oceans, seas and marine

resources for sustainable development. Food and Agricultural Agency of the United

Nations (FAO) act as a custodian agency for a few numbers of indicators under SDG

14. FAO support governments to set national priorities and targets; foster strong and

coherent institutional and policy process and dialogues, and dialogues and contribute

innovative partnership; contribute to mobilizing resources in support of national efforts;

contribute to the global follow up and review of SDGs106.

104 UNCTAD, Trade and Environment Review 2016 105 WT/MIN (15)/37/Rev.1 of 7 January 2016 106 Food and agricultural organization of the United Nations ‘Exploring Sustainable Development Goal

14.b and its Proposed Indicator (November 2017).

Target 14.1: By 2025, prevent and significantly reduce marine pollution of all kinds in particular form

land-based activities, including marine debris and nutrient pollution.

Target 14.2: By 2020, sustainably manage and protect marine and coastal ecosystems to avoid

significant and adverse impacts, including the strengthening their resilence and take action for their

restoration to achieve healthy and productive oceans.

Target 14.3 Minimize and address the impacts of ocean acidification, including through enhanced

scientific cooperation at all levels.

Target14.4: By 2020, effectively regulate harvesting and end overfishing, illegal, unreported and

unregulated fishing and destructive fishing practices and implement science-based management plans

37

NEGOTIATING GROUP ON RULES- COMMUNICATIONS FROM THE

CHAIR DECEMBER 2018

Recent documents from the Negotiating Group on Rules107 acknowledges the

importance of the fisheries sector to livelihood and development. It also discusses the

sustainable development of fisheries capacity throughout the value chain and concerns

of food security in developing countries. It also reaffirms the commitment under 2030

to prohibit the subsidies that contribute towards overcapacity and overfishing by 2020,

eliminate the existing subsidies that contribute towards the illegal, unreported and

unregulated fishing and to prevent the introduction of such kind of subsidies. It also

recognized that appropriate and effective special and differential treatment should be

accorded to developing and Least Developed Countries (LDCs). Article 5 of this text

states that a transitional period should be given to the developing and least developed

countries following the entry in to force of this Agreement provided that the vessel

receiving the subsidy does target the fish stocks that are already in an overfished

situation.108 The NGR Rules 2018 also mandates the members to notify the newly

providing subsidies.109 The SCM Committee shall make new arrangements to evaluate

the current subsidies and to make recommendations for future improvement.110 The

operation of this instrument shall reviewed by the committee.

inorder to restore fish stock in the shortest time feasible, at least to levels that can produce maximum

sustainable yield as determined by their biological characteristics.

Target 14.5: By 2020, conserve at least 10 per cent of coastal and marine areas, consistent with national

and international and based on the best available scientific information.

Target 14.6: By 2020, prohibit certain forms of fisheries subsidies which contributed to overcapacity,

eliminate subsidies that contribute to illegal, unreported, and unregulated fishing and refrain from

introducing new such subsidies, recognising that appropriate and effective special and differential

treatment for developing countries should be an integral part of the World Trade Organization fisheries

subsidies negotiation.

Target 14.7: By2030, increase the economic benefits to small island developing states and least

developed countries from the sustainable use of marine resources, including through sustainable

management of fisheries, aquaculture and tourism.

Target 14 a: Increase scientific knowledge, develop research capacity and transfer marine technology,

to improve ocean health and to enhance the contribution of marine biodiversity to the development of

developing countries, in particular, small island developing states and least developed countries.

Target 14.b: Provide access for small-scale artisanal fisheries to marine resources and markets.

Target 14c: Enhance conservation and sustainable use of oceans and their resources by implementing

international laws as reflected in the United Nations Convention on the Law of the Seas, which provides

the legal framework for the conservation and sustainable use of oceans and resources, as recalled in

“future we want” 107 TN/RL/W/274/Rev.6 November 2018 108 Id Article 5 109 Id Article 6 110 Id Article 8

38

NEGOTIATING GROUP ON RULES- WORK PROGRAMME JANUARY-

JULY 2019 111

Negotiating Group on rules declared a cluster of meetings from January to July

discussing the main issues such as special and differential treatment; institutional

arrangements, notifications and transparency. Ambassadors will play an important role

in the negotiations.

NEGOTIATING GROUP ON RULES CHAIR SUBMITS A DRAFT

CONSOLIDATED TEXT TO WTO MEMBERS JUNE 25, 2020 112

In negotiating Group on Rules Meeting on Fisheries Subsidies on 25 June, 2020, the

Chair, Ambassador Santiago Wills of Colombia, proposed to the Heads of WTO

delegations, in preparation of the document-based process of the negotiations, a draft

unified document of disciplines.113 This was the first meeting on Fisheries Subsidies

since the imposition of containment measures at Covid19 in mid-March. The Chair

offered a thorough description of the document, which invited delegations to review at

a meeting scheduled for 21 July in preparation for the first substantive discussion. The

Chair remembered the importance of the talks on fisheries subsidies. Prior to the

COVID-19 pandemic, the Members worked to conclude talks on fisheries Subsidies at

the 12th Ministerial Conference, which was expected to take place from 8-11 June, and

has not yet been rescheduled.

2.6 CONCLUSION

The reduction in worldwide fish stocks has consequence for the protection of food and

the livelihoods of many people around the world. The Agreement of the World Trade

Organization (WTO) on the prohibition of harmful subsidies for fisheries, which is

currently being negotiated, will make a major contribution to the protection of global

fisheries.

111 TN/RL/31 112 WTO/2020 News items-Fisheries Subsidies Negotiations Chair introduced draft Consolidated text

to WTO Members https://www.wto.org/english/news_e/news20_e/fish_25jun20_e.htm Last Visited

(9 August 2020) 113 Id

39

CHAPTER III

INTERNATIONAL LEGAL INSTRUMENTS ON FISHERIES – ACCESS TO

RESOURCES, SUSTAINABILITY AND FISHERIES SUBSIDIES

PERSPECTIVES.

“The sea is common to all because it is so limitless it cannot become a possession of

anyone because it is adapted for the use of all, whether we consider [it] from the point

of view of navigation or fisheries."

- H Grotius114

INTRODUCTION

The above statement by Grotius in Mare Liberum115points out that high seas are

inalienable and are open to all. It reflects states common interest in uncontrolled use

of high seas as a route for trade and as a fishing ground, as well as the part of the interest

of the naval power in rigid allowing unhindered passage of their fleets.116 Grotius

further pointed out that Sea is not a property of no one (re nullis) but is it in a common

possession (res communis) and is public property (res publicia).117

International fisheries law, a part of the law of the sea, is an emerging area of Public

International Law that attempts to regulate fisheries management in areas beyond

national Jurisdictions. This body of law is linked with other areas of international law,

international environmental law, international marine environmental law, sustainable

developmental law, etc. Along with international and regional treaties and customs,

other elements such as decisions of International Courts and tribunals on international

matters, practices of regional fisheries management organizations and writings of legal

experts have contributed towards the development of International Fisheries Law.

Economist and environmentalist have called for attention to the fishing sector by the

WTO Regime. Fisheries conservation and management are addressed by several

114 H Grotius, The Freedom of the seas; Or, the Right which belongs to the Dutch to take part in the East

Indian Trade (Trans R Magoffin) (Oxford University Press Oxford 1916) 28 as cited in The Oxford

Handbook of the Law of the Sea.203 (2015). 115 Mare liberum (or The Freedom of the Seas is a book on International law written by the Dutch Jurist

Hugo Grotius and is published in 1609. In the free seas, Grotius formulated a new principle that the sea

was International territory and all nations were free to use it for trade. 116Natalie Klein, Maritime security and law of sea 14 (Oxford University Press Oxford 2011) 117 Supra 144

40

financial instruments such as UNCLOS, FAO and other regimes to which WTO

members are not parties.

INTERNATIONAL LEGAL INSTRUMENTS ON FISHERIES.

United Nations Convention On Law of Sea (UNCLOS)

The UNCLOS has been often called as a constitution for the oceans. The Convention

law on the law on the Sea came during the second half of the 20th century. Before

UNCLOS Cannon short rule and the doctrine of the freedom of the seas were used to

restrict national jurisdiction over high Seas118. The former rule meant that territoriality

would extend to the distance a projectile can be fired from the land to cover, the latter

doctrine manifested that a nation's sovereign would extend to a narrow band of coastal

waters, leaving the rest of the seas free for all. In 1945, the United States introduced the

Trueman proclamation to claim sovereign rights over the outer continental Shelf and

the resources therein. It also facilitates conservation of Zones in areas of the high seas

contiguous to the coasts of the United States119.

The first United Nations Conference on Law of Sea was held in 1958, which resulted

in the adoption of four important Conventions. These Conventions were (i)Geneva

Convention On territorial waters and the Contiguous Zone. (ii) Geneva Convention on

Continental Shelf;(iii) Geneva Convention on High Seas; and (iv) Geneva Convention

on Fisheries. However, it failed to demarcate the maximum breadth of the territorial

Sea.120 The United Nations Convention On Law of Sea was coordinated in 1960 to deal

specifically the issue of the breadth of territorial waters and also issues relating to

fisheries limits121. The Conference failed to arrive at a consensus in establishing the

limits of territorial waters. No Convention was therefore adopted in this Conference.

The Third United Nations Conference on the law of the Sea (UNCLOS III) adopted in

1973 and was participated by 160 states. This Convention resulted in the adoption of a

Comprehensive Convention, i.e., the United Nations Convention on the law of Sea.

UNCLOS seeks to "promote the peaceful uses of the seas and oceans, the equitable and

118 Arup Kumar Poddar, Marine Biodiversity Protection 44 (1st ed.2016) 119 Harry S. Truman, President Truman’s Proclamations on U.S Policy Concerning Natural Resources of

Sea Bed and Fisheries on High Seas, available at http://www.ibibilo.org/pha/policy/1945/450928a.html

(Last visited January 14,2020) 120 Background to UNCLOS, Continental Shelf Programme available at

(http://www.Continentalshelf.org/about/1143.aspx) 121 V.K Ahuja, Public International Law (1st ed.2015)

41

efficient utilization of their resources, the conservation of their living resources, and the

study, protection and preservation of the marine environment.122 The objective of this

Convention is to provide the legal framework marine issues, including the regulations

for the exploitation and management of MLR (Marine Living Resources). However,

the treaty took almost another decade for its full implementation, coming into force on

November 16, 1994. some modifications and adjustments were made to Part XI of the

LOSC before it entered into force. This occurred via a 1994 UNGA resolution123that

formally agreed upon an agreement relating to the implementation of Part XI of the

United Nations Convention on the law of the Sea of December 10, 1982124. UN Fish

Stock Agreement which was implemented on December 11, 2001 along with Part XI

of UNCLOS III which came into force on July 28, 1996 is often referred to as the

Constitution of the Sea. The fish stocks Agreement's core objective is the long term

conservation and sustainable use of straddling fish stocks and Highly Migratory Fish

stocks125and seeks to achieve that end via application of the precautionary principle in

the management of these stocks. An important point of distinction between 1994

implementing Agreement and the 1995 fish stock Agreement is that the former is to be

interpreted and applied in the context and manner consistent with LOSC.126

" UNCLOS recognizes the need of conservation and efficient utilization of fisheries

subsidies and thereby set forth an aspiration for a 'just and equitable international

economic order' and due consideration of the special interests and needs of developing

countries is pronounced to be vital to this end127.

UNCLOS sought to settle the jurisdiction of coastal states over their territorial sea and

fishing resources located in the sea adjacent to their coast. Jurisdiction of coastal states

had been debated in international law through a series of decisions of the International

court of justice.

UNCLOS enshrines the overarching framework for the governance of Oceans. Part XII

of UNCLOS deals with protection and preservation of the marine environment. States

have an obligation to protect and preserve the marine environment128. States have the

sovereign right to exploit their natural resources pursuant to their environmental

122 UNCLOS Preamble. 123 UNGA Resolution 48/263 (1994) 124 See 1994 implementing Agreement, Annex 125 Art 2, Fish Stocks Agreement 126 Id Art 4 127 Supra 122(UNCLOS preamble) 128 Article 192 of UNCLOS

42

policies and in accordance with their duty to protect and preserve the marine

environment129. The synergy between Arts 192 and Art 193 demonstrates the balance

which had to be made between the common awareness of the need to protect and

preserve the marine environment and proper consideration of the economic status of

states. Though the foremost purpose of Article 193 has been to guarantee states demand

for natural resources and the right to exploit them, it also underlines the precept 'No use

of the ocean without its protection'. There is nothing novel in the proposition in the

proposition firs articulated in Article 192 of the 1982 Convention that 'states have an

obligation to protect and preserve the marine environment' although this may not be the

case when the article was first proposed in 1975130.

However, the 1982 Convention is important because it assigns to the IMO the task of

defining and updating the detailed content of the obligation of due diligence as

formulated in Article 194131.

ACCESS TO RESOURCES

The zonal distinction was introduced by UNCLOS III delineating the maritime regions

and the extent of sovereign powers.

Internal waters

Internal waters and territorial sea forms a part state territory. Article 3 of the UNCLOS

declares that a nation may establish a territorial sea that extends up to 12 nautical miles

from the baseline132. Internal waters133 whether lakes, rivers or harbours, are such

waters are to be found on the landward side of the baseline from which the width of the

territorial and other zones is measured, and are assimilated with the foreign state. Other

states can enjoy in these waters is a right of innocent passage in the territorial sea and,

in minimal circumstances in internal waters. Though it is unusual in practice, a state

enjoys exclusive access to the fish stocks in its internal waters and territorial sea, unless

another state is accorded access by Agreement. Article 47 of the UNCLOS provides for

129 Supra 122 130 Patricia Birnie et al.,International law and the Environment 387 (3rd ed.2009) 131 Id at 390 132 Daniel Hollis et al., United Nations Convention on Law of the sea (UNCLOS),1982,2010 (Jan

20,2020 11:45PM),http://dramarnathgiri.blogspot.in/2012/11/unnited-nations-convention-on-law-of-

sea.html. 133 R.R Churchill & A.V Lowe, The Law of Sea (3rd ed.1999)

43

regulations on how to determine the baseline for an archipelagic nation that consists of

a small group of islands.134

Exclusive Economic Zone

States have sovereign rights for exploring and exploiting, conserving and managing the

fish stocks within the EEZ.135 These rights are not absolute but subject to a number of

duties. The coastal states must make sure that fish stocks within its EEZ are not

endangered by overexploitation and must take all possible conservation and

management measures. The coastal States is mandated to promote optimum utilization

of living resources of its EEZ.136 The coastal state is to determine the total allowable

catch within its EEZ.137 But it is to be noted that the duties of the coastal states are

extensive and general and the States are given broad discretion in exercising these

duties. For instance, the states enjoy discretionary powers in relation to setting the total

allowable catch138 provided that it does not amount to over-exploitation which do harm

to the fish stock. Still, it is not necessarily a bad thing, but it enables the coastal states

to adopt fishing strategies suitable to its need. It is still uncertain that the duties outlined

in articles 61 and 62 have become part of customary law. A few states have incorporated

these duties under their national law. Where the coastal states do not have the capacity

to harvest the whole of allowable catch, it shall permit fisherman of other States to

access to the surplus of allowable catch.139As per articles 69 and 70, landlocked and

geographically attached States have guaranteed access for a portion of a surplus of

allowable catch. The coastal states can lay down the conditions to govern fishing by

other states in EEZ.140Where the coastal states have set down regulations which are in

compliance with the Convention for foreign vessels in its EEZ it may enforce them by

boarding, inspection, arrest and judicial proceedings.141 Where the size of EEZ of a

134 Baseline is the coastal waterline ,the point from which a state can initiate determination of the part

of adjacent oceanic areas or continental shelf for the purpose of exercising sovereignty as per Articles

5,6,7,and 9 to 14. 135 Art.56(1) of LOSC 136 Art.62(1) of LOSC 137 Art.61(1) of LOSC. 138 Art .61(1) of LOSC 139 Art.62(2) of LOSC 140 See Article 62(4) of LOSC. In the Franco- Canadian Fisheries Arbitration the tribunal held that the

coastal state’s competence to enact legislations was confined to conservation measures alone and

therefore could not include measures to regulate fish processing. 141 Article 73(1) of LOSC

44

coastal state is considerably large, it poses a challenge for the enforcement of its fishery

regulation in terms of technology142 and resources.

Exclusive Fishing Zone (EFZ)

Exclusive Fishing Zone (EEZ) is a concept of recent origin in International Law of the

Sea. Widespread claims to the (EFZ) were the result of the failure of UNCLOS I and II

to agree on the breadth of the territorial sea. It also failed to accord coastal states any

special right of access to fish beyond the territorial sea. Coastal states led a wave of

unilateral claims to twelve-mile EFZ. Some of the claims were initially challenged even

leading to a ‘cold war’ between two states143.In the 1974 fisheries Jurisdiction cases,

the International Court of Justice without hesitation pronounced twelve-mile EFZ to be

an established rule of international law. Within the EFZ the coastal state had exclusive

access to the resources of the zone, although in most cases states whose vessel had

traditionally fished in waters in the waters embraced by the new zones were given a

period of time in which to phase out their activities and in some cases indefinite, though

limited, continued access144.

Continental Shelf

The coastal state has an exclusive access to the natural resources of its continental shelf.

This right is confined under the customary rules of International law developed through

various decisions of International Court of Justice145. These rights are also recognized

under Articles 1 to 3 of the Convention on the Continental Shelf146. Where the physical

shelf extends beyond 200 nautical miles, states can exercise rights to the outer limits of

142 Technology includes the use of satellites to track vessels 143 The United Kingdom contested Iceland’s proclamation of a twelve EFZ in 1958, leading to a ‘cod

war’ between the two states. However, by the early 1960s the United Kingdom and other states

abandoned their opposition to such claims. There followed the conclusion of a number of bilateral

agreements, and at regional level in western Europe the Fisheries Convention of 1964, which

recognized claims to a twelve-mile EFZ. 144 Supra 10 145 See North Sea Continental Shelf cases (1969) 146 Article 76 allows states to protect an additional 150 miles beyond the EEZ provided a naturally

occurring continental shelf exists in that region, growing out to meet the oceanic water body in a

continental slope and supporting a huge amount of marine life: nations exploiting resources in this

region get a free head-start of five years, after which they are required to pay certain percentage of the

values generated out of such resources to the International Seabed Authority, which is then apportioned

among member-states of UNCLOS.

45

the Continental Shelf over those resources. 147More than 80 states may be able to claim

territorial rights over their continental shelf, where such right extend beyond 200

nautical miles from their coast, and many of these claims are currently being examined

by the Commission on the Limits of Continental Self.

High Seas

High Seas are regarded as Common heritage of mankind. They are not inclined to

appropriation and are open to use by all states. Thus the vessels of all states have access

to the fish stocks of the High Seas. Though access to the fishery resources of the High

Seas was unrestricted, many states through arrangements regulate high seas fisheries to

limit their access. Under customary international law a coastal State particularly

dependent on fishing for its economic livelihood in certain circumstances enjoyed

preferential rights of access to the high-seas fishery resources in the waters adjacent to

its coast148.

Prevention of overfishing under international law was initially limited to allocating the

competence to adopt conservation measures, but through the establishment of

international fisheries commission and ad hoc agreements regulating fishing, it became

a concern under International Law.

FISH STOCK AGREEMENT 1995

With the Adoption of the 1994 Implementing Agreement and the 1995 Fish Stock

Agreement it has been possible to fill some of those gaps and to extend the LOSC into

new areas149. The Fish Stocks Agreement aims to improve the cooperation between the

states to achieve the long term conservation and sustainable use of straddling Fish

stocks and highly migratory fish stocks150. It provides that coastal states and states

fishing on the High Seas either directly or through appropriate regional However, the

technological developments and environmental challenges may in the future further test

the capacity of the regime of the international law of the sea to cope and there has been

speculations as to whether there may be need for a Fourth United Nations Convention

147 Joanna Mossop “The continental Shelf Beyond 200 nautical Miles Rights and Responsibilities 15 (1st

edition 2016)

148 See Fisheries Jurisdiction Cases 149 Donald R Rothwell & Tim Stephens, the International law of the sea 28 (2010) 150 Fish Stocks Agreement, Preamble

46

on Law of Sea.151 This question really challenges the validity and stability of the LOSC

or in other words can the LOSC continue to act as a ‘constitution of the oceans’.152

The provisions of UNCLOS are challenging to implement owing to logistical problems

and colossal expense involved, especially in relation to areas beyond national

jurisdiction. Every states would not give preference to the High seas over its coastal

areas, where would like to have its resources concentrated. The paucity of resources

assumes graver significance in the developing countries, an indication of the same being

quickly revealed by a comparative assessment of enforcement mechanism of the bodies

like the regional fishery bodies like the regional fishery in the Bodies in developed

countries, when it comes to the availability of resources and issue based solutions.

STRADDLING STOCKS

The LOSC Convention identifies the need for the inter-state cooperation and

coordination regarding shared stocks and highly migratory species. Straddling stocks

are stocks of fish that migrate between or occur in both, the EEZ of one or more states

and high seas153.Since the establishment of 200 nautical miles Exclusive Economic

Zones (EEZ) by many coastal states, distant-water fishing states are forced to conduct

their fishing operations in areas of high seas adjacent to EEZ. Consequently, there was

a notable increase in catches of straddling fish stocks and highly migratory fish stocks.

154In some cases, such fishing activities have the potential to undermine the protection

and management measures placed in place by coastal states in areas under their natural

jurisdiction, given the transboundary existence of fish stocks155. The law of sea

Convention has only one brief provision dealing with straddling stocks. Where the same

stock or stocks associated species occur both within the exclusive economic zone and

in an area beyond and adjacent to the zone, the coastal zone and the states fishing for

such stocks in the adjacent area shall seek, either directly or through appropriate sub-

regional or regional organizations, to agree upon the measure necessary for the

conservation of these stocks in the adjacent area156.This provision fails to provide a

151 Supra 145 152 Koh, Constitution for the Oceans’(n 115) 153 Supra 10

154 See Also Malcom Devanas ‘International Law 680 (4th ed.2014) 155 DOALOS/UNITAR briefing on developments in ocean affairs and the law of sea 20years after the

conclusion of the united nations convention on the law of sea (Wednesday,25 and

Thursday,26september 2002, United Nations Headquarters, New York, Conference Room 5. 156 Article 63 (2) of UNCLOS.

47

substantive guidance as to how the problems involved with regulating straddling stocks

are to be addressed. But it did provide for cooperation directly or through international

organizations for the conservation and optimum utilization of such species157.UNCLOS

is accompanied by more specific treaties, such as an implementing agreement on

straddling fish stocks and highly migratory fish stocks (United Nations Fish Stocks

Agreement, UNFSA).158The UNFSA attempts to address ongoing problems especially

overutilization of resources within the high seas. It is regarded as a major improvement

to the international framework sustainable fishing. A Precautionary approach to the

protection of marine ecosystem and biological diversity is now addressed in many of

the international treaties and Conventions including Conventions on Biological

Diversity and Climate Change, 1995 Agreement on Straddling and Highly Migratory

Fish Stocks, the 2004 Ballast Water Convention and the creation of specifically

protected areas by IMO and under regional sea Agreements.

GOVERNING BODIES UNDER UNCLOS

Various bodies have been created under UNCLOS to administer its provisions. These

include the Commission on the Limits of the Continental Shelf, the International Seabed

Authority (including the Secretariat, the Assembly and the Council), Legal and

Technical Commission and Economic Planning Commission. These bodies try to

ensure effective and expanding implementation of the provisions and principles

contained in the UNCLOS. Moreover, they regulate the exploitation of marine

resources in accordance with the tenor of UNCLOS. The International Tribunal for Law

of Sea, which is established under UNCLOS also plays an important role in resolution

of disputes spring from the issues addressed by various provisions of the Treaty.

International law fails to define the term ‘overfishing’ and it even fails clearly point out

when a fish stock is overfished. As fisheries are common property natural resource,

anyone can enter a particular fishery. Property rights only arise when the fish are caught

and kept in the custody of an individual fisherman. If more and more fishermen enter

the fishery more and more fish will be caught. If the quantity of fish caught, together

157 Article 64 UNCLOS 158 Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of

the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks

and Highly Migratory Fish Stocks.

see further http://www.un.org/Depts/los/convention_agreements/convention_agreements.htm. Note

that highly migratory species are listed in Annex I of UNCLOS, which lists 17 species, not all of which

would be considered as “highly migratory fish stocks” (i.e. dolphins and cetaceans)

48

with fish lost through natural morality, exceeds the amount of fish being added to the

stock through reproduction, then the size of the stock will start to decrease: in extreme

cases the stock may even collapse and this phenomenon is known as

overfishing159.unregulated fishery will ultimately end in overfishing.in order to combat

overfishing it is necessary to regulate the fish to be caught. However, the United Nations

Convention on the Law of the Sea (UNCLOS) states in Article 61 on the conservation

of living resources that “[t]he coastal State […] shall ensure through proper

conservation and management measures that the maintenance of the living resources in

the exclusive economic zone is not endangered by over-exploitation. Such measures

shall also be designed to maintain or restore populations of harvested species at levels

which can produce the maximum sustainable yield. Therefore, the convention

recognizes the maximum sustainable yield for the assessment of fish stock. Article 61

ad 62 of the UNCLOS describes the states obligation for the conservation and use of

living marine resources within the Exclusive Economic Zone160. Article 194 lays down

the obligation for the conservation of biodiversity and protection of marine habitat. The

agenda 21 of the 1992 Rio Conference have referred to UNCLOS 1982 as providing

‘the international basis upon which to purse the protection and sustainable development

of the marine and coastal environment and its resource. Several new elements which

were not found in UNCLOS have introduced under Chapter 17 of Agenda 21 which

includes an emphasis on integrated and precautionary approaches to the protection of

marine and coastal environment161.

FOOD AND AGRICULTURAL ORGANISATION

FAO recognizes the importance of fisheries and its associated products in poverty

allocation and in economic growth through fish production and trade. FAO plays a

crucial role in International Fisheries regulation through Committee on Fisheries and

related Sub-committees on Fish Trade and Aquaculture162. FAO along with Regional

Fisheries Bodies, Cooperatives and government works on implementing Code of

Conduct for Responsible Fisheries and the Ecosystem approach to Fisheries (EAF)163.

159 Supra 133 160 P kataria, “sustainable development goals: their impacts on forest and people” 161 Agenda 21,ch 17,para 17.1 162 FAO. 2019. Report of the Thirty-third Session of the Committee on Fisheries, Rome, Italy 9–13 July

2018. FAO Fisheries and Aquaculture. Report No. 1249. Rome. Licence: CC BY-NC-SA 3.0 IGO. 163 Id

49

The focus of FAO has shifted from building brotherhood between coastal states and

fishing states to devising methods of conservation. The FAO’s Contribution towards

the management of fisheries can be divided in to three phases. In the first phase FAO

focused on the management of fisheries in the Northern European countries through the

formulations of standardized methodologies. During the second phase they shifted its

focus from Northern European countries towards developing countries. They have

carried out various workshops and training courses and establishing regional

commissions between the 1960 s and 1980s. This phase of FAO is commonly referred

to as developing countries phase. In the third phase the FAO has expanded its work

towards the global level as it had considerably more resources and better experience. In

this phase FAO analyses the effect of globalization on world fisheries. In order

eliminate IUU Fishing, FAO has issued certain guidelines in the form of an

International Plan of Action (IPOA IUU).164 This is a voluntary instrument which

describes to IUU fishing with reference to Maritime Zones as well as RFMO’s

arrangements for governance along with the description which has been taken up in the

WTO’s textual proposals on fisheries subsidies disciplines.165

The lack of proper and efficient enforcement mechanism has been one of the primary

reasons for the failure for the regulation of fisheries under the regime of International

Law. According to the Food and Agriculture Organization (FAO) of the United

Nations, fish stocks that are within biologically sustainable levels has fallen from 90.0

percent in 1974 to 66.9 percent in 2015166.

SUSTAINABLE DEVELOPMENT AND SUSTAINABLE USE

Ever since the conclusion of Earth Summit and Agenda 21, the concept of sustainable

development concept has been frequently invoked in international law and policy167.

Brundland Commission described it as development that meets the needs of the present

without compromising the ability of future generations to meet their own needs. Article

164 FAO IPOA-IUU (http://www.fao.org/fishery/ipoa-iuu/en) see also (http://www.fao.org/fishery/ipoa-

capacity/en) and the Voluntary guidelines on flag state Performance

(http://www.fao.org/fishery/topic/16159/en) 165 FAO IPOA-IUU para 3. 166 Introduction to Fisheries Subsidies in the WTO, World Trade Organization (13 September 2016) At

9 (https://www.wto.org/english/tratop_e/rulesneg_e/fish_intro_ehtm) 167 Report of the United Nations Conference on Environment and Development, Rio de Janeiro,3-14 j

June 1992, UN Doc A/CONF.151/26 (1992) Annex II.

50

4 of the Rio Declaration requires that ‘environmental protection shall constitute an

integral part of development process and cannot be considered in isolation of it168. The

Convention on Biodiversity defines the sustainable development as ‘use in a way and

at the rate that does not lead to the long-term decline of biological diversity, thereby

maintaining its potential to meet the needs of present and future generations.169

In a strict sense, putting sustainable use into practice should mean that over a certain

period of time only as much of renewable resource is taken for human purposes that

can be naturally replenished170. The sustainable use of MLR (Marine Living Resources)

would therefore oblige the state to allow for catches of a target species only to the extent

to which the relevant stock reproduces. Yet, despite obvious necessity, the international

legal framework in place and continuous efforts towards its implementation, it seems

doubtful that management of MLR at sustainable levels will be fully achieved in future.

The LOSC supports sustainable use of resources by limiting exclusive Economic Zone

(EEZ) and high seas to the maximum Sustainable yield (MSY)171. The Geneva

Convention on Fishing and the Conservation of Marine living resources of the High

Seas also incorporated objectives for the achieving and maintaining the ‘optimum

sustainable yield’ in order to secure the supply of fish as food for human

consumption.172

CONCLUSION

At the International level the countries are obliged for the conservation and sustainable

management of fisheries. This is apparent from the membership and commitments of

countries to the UNCLOS, UN Fish Stock Agreement etc. The coastal states, distant

water Fishing Nations should take the adequate steps for the conservation and

management. Regional level fisheries management should be strengthened to identify

illegal and overfishing. Continuous monitoring surveillance of high sea vessels by the

concerned state is significant in controlling IUU fishing. Development and protection

of Marine life forms should go hand-hand.

168 Rio Declaration n 8 169 Art 2 Convention on Biological Diversity. 170 Supra 10 171 Art 61(3) and 119(1) of LOSC 172Art 2 of Geneva Convention on Fishing and Conservation of the Living Resources of the High Seas.

51

CHAPTER IV

INDIAN FISHERIES LANDSCAPE – REGULATORY ENVIRONMENT,

DEVELOPMENT CONCERNS AND SUBSIDIES SCENARIO

“Ensuring the Sustainable Development of the Oceans requires effective coordination

and cooperation, including at the global and regional levels, between relevant bodies”173

INTRODUCTION

Managing living marine resources for the global food market is a classic issue of

collective action, and often it is referred to as "back of the invisible hand" problems or

free-rider problems. Most problems of collective action involving natural resources

share similar qualities.174 Take a physical resource that is scattered, and mostly

independent of a system for the legal property. Add multiple independent actors who

feel they are entitled to extract the property, for a variety of historical reasons. Top it

off with an inadequate system of governance, also under control. The consequence is

an unprecedented resource crisis.175 As per the Living Blue Planet Report, the State of

global Marine Fisheries is critical and worrying.176 The global fishing fleet is 2-3 times

larger than what the oceans can withstand. In other words, humans are taking far more

fish out of the ocean than any remaining will replace them. As a result, 31% of global

fish stocks are listed as overfished and another 58% as being completely depleted, with

little capacity to produce higher harvests.177 The United Nations Educational, Scientific

and Cultural Organization (UNESCO) warns that fish, long regarded as the "poor man's

protein", is diminishing globally as a result of increasing market demand and

overfishing.178

173 Plan of Implementation of the World Summit on Sustainable Development (A/CONF.199/20) para

30 174 Russell Hardin, Collective Action 7 (1982) 175 Anastasia Telesetsky, Laundering Fish in the Global Undercurrents: Illegal, Unreported, and

Unregulated Fishing and Transnational Organized Crime, 41 Ecology L.Q. 939 (2014). 176 WWF 2015‘Living blue planet report. Species, habitats and human well-being. Eds. Tanzer, J et al.

WWF, Gland, Switzerland. 68 pp. 177 FAO,2016 The State of World Fisheries and Aquaculture 2016 ‘Contributing to food security and

nutrition for all. Rome. 200 pp. 178 The United Nations Educational, Scientific and Cultural Organization is a specialized agency of the

United Nations aimed at Contributing “to building of Peace, the eradication of poverty, Sustainable

52

INDIAN FISHERIES LANDSCAPE

India is a South Asian Country that is mostly surrounded by oceans. It has 28 states

and seven union territories, out of which the population of nine states and four union

territories depend on fishing both directly or indirectly. With an overall population

today exceeding 1.2 billion people, India is the World's second-most populous country.

Marked oceanographic differences exist between the east and west coasts. However,

both the eastern Bay of Bengal and the Arabian Sea along the west coast provide the

coastal communities with abundant marine resource. India's southwestern coastal

region extends from approximately 8º N to 15º 30' N with a coastline length of 994 km,

adjoining three maritime states, Kerala, Karnataka and Goa.179 The continental shelf

area off the southwest coast is 75 400 km, and less than 50 m depth is 31 per cent of

the area.

India is the third-largest country in terms of Fish production and the World's second-

largest producer of aquaculture fish. India contributes to global fish production by

around 7 per cent. The country also has more than 10 per cent of the World's aquatic

biodiversity and is one of the biodiversity richest countries with 17 mega bio diversities.

The country is also home to more than 10% of the worldwide fish biodiversity and is

one of the 17-mega biodiversity-rich countries. Nearly 14 million people in India are

engaged in fisheries and its allied activities. Andhra Pradesh is the largest fish

producing state in the country, followed by Gujarat and West Bengal. As per the 2017-

2018 estimate, the total fish production of the country is around 12.60 million metric

tonnes, of which nearly 70 per cent is from inland fisheries and 50 per cent from culture

fisheries. About 50 different types of fish and shellfish products are shipped to 75

countries worldwide. Fish and fish products have now emerged as India's largest

agricultural export group, with a quantity of 13.77 lakh tonnes and a value of Rs.

45,106.89 Crore.

The fisheries sector plays an inevitable role in the development of the Indian Economy,

and it contributes one per cent to the total GDP. There is rapid growth in the Industrial

sector from 4.9 per cent in 2012-2013 to 11.9 per cent in 2107-2018. Export of fish and

fish allied products emerged as the largest group in agricultural exports, and as per the

development and Intercultural dialogue through education, the sciences, Culture, Communication and

Information. 179 E. Vivekanandan & M. Srinath etal ‘Marine Fisheries Along the Southwest Coast of India’ 758

53

latest Estimation, it accounted for Rs 47,620 crore in 2018-2019.180 0.99 million

fishermen are directly, and 0.61 million are indirectly associated with the fisheries

sector. The country's total fishing folk population is 4.00 million, and about 1,94,490

fishing crafts are operating in the country to harvest marine fishery resources (CMFRI,

2010).181 Around 72,500 of these are mechanised crafts, 71,300 are motorised, and the

remaining are un-mechanised. There are approximately 35,200 trawlers in the

mechanised sector. These crafts are fishing up to 100m depth zone. Traditional crafts

and motorised boats are more concentrated on the east coast (72% and 58%) while the

mechanised vessels are more in the west coast (58%).182 It is commonly cited that the

depletion of fisheries is due to the introduction of techniques of trawler fishing, which

are scrape, the bottom of the sea and end up catching juvenile fish. The fact that there

is a definite challenge to fishing stocks is not disputed by a lot of work undertaken by

several fisheries research firms.183

FISHERIES MANAGEMENT IN INDIA

In India, the fisheries Management and Conservation are under the Department of

Animal Husbandry, Diarying and Fisheries (DAHD) under the Ministry of Agriculture,

Government of India.184 The Indian Council of Agricultural Research (ICAR) and other

scientific Institutions also plays an inevitable role in the fisheries Management and

Conservation.185

The geographical area of Indian Marine Fisheries has coastline around 8118 km;

Exclusive Economic Zone is an area around 2.02 million sq.km including 0.5 million

sq.km of Continental Shelf and 3937 fishing villages.186 Gujarat secured the first

position with 7.80 lakh tonnes landings followed by other maritime states. As per

current CMFRI report Tamil Nadu has 7.80 lakh tonnes (20.1%), Kerala with 6.43 lakh

tonnes which contributes to 18.4% of total Indian Marine Landings. Significant

contributions are made by other maritime states such as Karnataka with 4.52 lakh

180 https://economictimes.indiatimes.com/news/economy/agriculture/fisheries-sector-registered-more-

than-double-growth-in-past-5-years-emerged-largest-group-in-agri-export-economic-

survey/articleshow/70071062.cms last visited May 6 2020 181 T.V Sathinandan ‘ Marine Fisheries Sector in India- Resource Endowments, infrastructure

intensities and stakeholder analysis.28 182 Id 183 Johnson.B Management of Indian Fisheries- Regulation and Compliance 365 (2012) 184 Jacob Joseph, select legal and Policy Instruments on Marine Fisheries Conservation and

Management,210(1st e.d 2011) 185 Id at 210 186 Preamble Marine Fishing Policy 2004

54

tonnes (13.0%), Maharashtra with 2.95 lakh tonnes which contributes 8.5% and Andhra

Pradesh with 1.94 lakh tonnes which adds 5.5%, West Bengal with 1.60 lakh tonnes

and Odisha with 0.89 lakh tonnes. Contributions of Union territories are also inevitable

where Daman &Diu has 0.68 lakh tonnes, Goa with 0.59% and Puducherry with 0.45

lakhs.187There are 1896 traditional fish landing centres, 33 minor and six principal fish

harbours which act as a base for 2,08,000 non- motorised craft, 55000 small scale beach

landing and 180 deep-sea fishing vessel in which 80 are in operation.188

In India fisheries management are under two heads; Fisheries Management under

Exclusive Economic Zone (EEZ) and in territorial waters.189 As per the Indian

Constitution, the central government has jurisdiction over the fisheries in Exclusive

Economic Zone190 whereas the state government has jurisdiction over fisheries in

territorial waters.191 In addition to playing an advisory role, the Central Government

also provides financial support for the administration of the Central Sector and

Centrally Sponsored Schemes for the states / Union Territories. Policy measures are

needed not only to make marine fisheries sustainable and responsible but also to make

them competitive globally so that Indian producers can benefit from international

markets.192

FISHERIES MANAGEMENT UNDER EXCLUSIVE ECONOMIC ZONE

(EEZ)

In 1976, India enacted the Territorial Waters, Continental Shelf, Exclusive Economic

Zone and Other Maritime Zones Act followed by the adoption Article 297193 of Chapter

III, Part XII of the Constitution with the implementation of the EEZ concept.194

187 CMFRI Report 2018-2019 188 Preamble Marine Fishing Policy 2004 189 https://indianfisheries.icsf.net last accessed on May 6, 2020 190 Entry57, list 1 of 7th Schedule of Indian Constitution 191 Entry 21 , List II of 7the schedule 192 Preamble Marine Fishing Policy 2004 193 Article 297 of the Indian Constitution read as follows: Things of value within territorial waters or

continental Shelf and resources of the Exclusive Economic Zone to vest in the Union.

(1) All lands, minerals and other things of value underlying the ocean within the territorial waters,

or the Continental Shelf, or the Exclusive Economic Zone, of India shall vest in the Union and

be held for the purposes of the Union.

(2) All other resources of the Exclusive Economic Zone of India shall also vest in the Union and

be held for the purposes of the Union.

(3) The limits of the territorial waters, the Continental Shelf, the Exclusive Economic Zone, and

other Maritime Zones, of India shall be such as may be specified, from time to time, by or

under any law made by the Parliament. 194 The Exclusive Economic Zone of the Seas around India (2018)

https://www.geographyandyou.com/exclusive-economic-zone-seas-around-india last accessed on 7th

May 2020.

55

Section 7 of the conveys central government with sovereign powers in the EEZ, for the

exploration, exploitation and conservation of natural resources including

fisheries.195No person, including a foreign government, shall, except under and in

compliance with any agreement with the Central Government or a license or letter of

authority granted by the central government, explore or exploit any EEZ resources or

conduct any search or excavation or conduct any research within the EEZ or perform

any research exercises therein, maintain or operate for any reason any artificial Island,

offshore terminal installation or other structure or system located therein.196 A Letter of

Permission from the Department of Animal Husbandry, Dairying and Fisheries is

required for the operation of any fishing vessel in the Indian EEZ and should not be

transferred to any other company or individual unless explicitly authorised by the

government.197 Although the state governments control Inland Fisheries entirely,

Marine Fisheries is a joint responsibility between the central and coastal state / UT

Governments. Coastal States / UTs are responsible for the growth, management and

control of fisheries in marine waters within the territorial 12 nautical miles (22 km)

range. The Government of India is responsible for fisheries production, management

and regulation in the waters of the EEZ beyond 12 nautical miles and up to 200 nautical

miles (370 km). It is therefore imperative that the Centre efficiently manages and

controls this common property resource in close cooperation with States for its safe and

responsible use. Coastal states / UTs have enacted the Marine Fisheries Protection Acts

(MFRAs) to control and maintain territorial waters, including compulsory registration

and licensing of fishing vessels. On a national level, there is no such regulation for EEZ.

The Centre will also pass comprehensive legislation (National Marine Fisheries

(Regulation and Management) Act, 2019) for the systematic use of EEZ tools. An

195 Section 7 (4) of the Territorial Waters, Continental Shelf, Exclusive Economic Zone(EEZ) and

other Maritime Zones Act,1976 reads as follows

In the exclusive economic zone, the Union has,-- (a) sovereign rights for the purpose of exploration, exploitation, conservation and management of the

natural resources, both living and non-living as well as for producing energy from tides, winds and

currents; (b) exclusive rights and jurisdiction for the construction, maintenance or operation of artificial

islands, off-shore terminals, installations and other structures and devices necessary for the exploration

and exploitation of the resources of the zone or for the convenience of shipping or for any other

purpose; (c) exclusive jurisdiction to authorize, regulate and control scientific research;

(d) exclusive jurisdiction to preserve and protect the marine environment and to prevent and control

marine pollution; and

(e) such other rights as are recognised by International Law 196 Section 7(5) of the Territorial Waters, Continental Shelf, Exclusive Economic Zone(EEZ) and other

Maritime Zones Act,1976 197 Guidelines for fishing Operations in Indian Exclusive Economic Zone, 2014

56

institutional framework to mitigate and manage inter-state conflicts, as well as

international disputes for the management of marine fisheries will need to be improved

and developed.

FISHERIES MANAGEMENT UNDER TERRITORIAL WATERS

According to the Indian Constitution, coastal fisheries are a state subject, and coastal

states have played a variety of roles in developing fishing and post-harvest. Although

it is a state subject, the central government continues to support fisheries by making

investments in more capital-intensive infrastructure for areas such as fishing harbours

and deep-sea fishing.198 The states implement many of the centrally sponsored schemes.

As a result of the boom in export trade for frozen shrimp, the rapid growth of the

country's mechanised fishing fleet has increased the fishing pressure on coastal marine

fishery resources leading to fish catch stagnation and economic overfishing.199 The

ensuing rivalry for the same resources between the mechanised and craft sectors leads

to frequent conflicts. It has prompted many maritime states to enact Marine Fishing

Protection Acts to protect the interests of both indigenous and commercial fisheries.200

Such regulations are in terms of the reasonable use and protection of fishery resources.

The management approaches are more or less identical in all States, and the proposed

rules are based on preventing disputes between indigenous fishers and mechanised

fishing vessels.

The former British government visualised as early as 1897 the need to implement such

legislative policy steps to regulate inland and marine fishing practices. However, the

Indian Fisheries Act of 1897 expressly prohibited only the use of explosives and

poisons for capturing fish and provided for the enactment of rules and regulations by

the provincial governments on fisheries resources management. Apart from granting

licenses for the operation of different forms of fishing equipment in inland waters

(including backwaters), the provincial government saw no urgent need to control

fishing in coastal waters, as fisheries were mainly artisanal.

The aim of coastal fisheries management in India until the 1970s was to increase fish

production by developing and enhancing fishing techniques and efficiency and by

198 Ramachandra Bhatta and R. Santha Kumar, Fisheries Administration and Legislation 1(2003) 199 P.S.B.R James A review of the existing Regulations in the Maritime States in India in Relation to

Exploitation of Fishery Resources and their Conservation and Management 84 (1992) 200Id at 84

57

offering fishermen welfare initiatives. 201 With the advent of mechanised fishing

vessels using trawl nets to catch prawns in the early 1960s, the rapid expansion of the

mechanised fishing fleet, the induction purse in Goa, Kerala and Karnataka in the late

1970s and the inflow of large numbers of trawlers in the early 1980s, the fishing

pressure on marine fisheries has increased drastically leading to economic overfishing.

The resulting rivalry- for the same resources between the mechanised and craft sectors

lead to regular conflicts. Such developments prompted the Government of India in

March 1978 to issue the following guidelines to State Governments.202 The guidelines

include the waters can be up to a distance of 5 km from the shore reserved solely for

non-mechanized fishing boats. Mechanised fishing vessels can only operate within 5

km of the coastline. Fishing vessels of 25 GRT (usually above 15 m OAL203) which

require skippers to manned under existing miles should operate more than 10 kilometers

from the shore. In December 1980 the guidelines were modified as follows: Non-

mechanized crafts can operate exclusively up to a distance of 10 km from the shore.

Small mechanised vessels can operate over a distance of 10 km from the coast. OAL

vessels 20 m above sea level can operate beyond 23 km from the shore, i.e. outside

territorial waters. Simultaneously with the issue of these guidelines, the Government of

India circulated a model bill to all maritime states to formulate rules and regulations for

the management of marine fisheries to be passed by the respective State legislatures

with a view to preserving the fisheries resources and also providing safety to the

artisanal fishermen.

However, there were grave concerns in the 1980s and 1990s that the unregulated growth

of the fishing industry might become counterproductive.204

Consequently, fisheries management priorities need to be shifted from increasing fish

production to sustaining fisheries, and in the 1980s Marine Fisheries Regulation Acts

(MFRA) were enacted by the governments of the maritime states. Those acts

concentrate on controlling the fishing effort, gear and area. Although the content varies

201 E. Vivekanandan, Sustainable Coastal Fisheries for Nutritional Security, Sustainable Indian

Fisheries. Pandian. TJ. (ed.), 200 I. pp. 19-42. National Academy of Agricultural Sciences, New Delhi 202 Supra 194 203 OAL stands for Overall length. It is defined as the distance measured in metres in a straight line on a

parallel to the design waterline between the foremost point of the bow and the aftermost point of the

starn. 204 Devaraj, M and Vivekanandan, E (1999) Marine capture fisheries of India: Challenges and

opportunities. Current Science,76 (3). pp. 314-332.

58

between states, the two significant restrictions in the Acts are (1) mesh size regulation

and (2) ban on inshore fishing by mechanised vessels. However, these two restrictions

are considered to be difficult to enforce and can prove ineffective in replenishing the

fish stocks if enforced.205

Marine Fishing Regulation Act was first passed by Goa Legislature in 1980 followed

by Kerala (1980), Maharashtra (1981), Orissa (1982), Tamil Nadu (1983),

Karnataka(1986), West Bengal(1993) and Andhra Pradesh (1994), Lakshadweep

(2000), Gujarat (2003) and Andaman and Nicobar Islands (2003). Indeed, these laws

have provided state governments with the authority to regulate and monitor fishing

activities in their respective states in accordance with different local needs. Indeed,

these laws have provided state governments with the power to control and monitor

fishing activities in their respective states in accordance with different local needs. In

addition to other administrative requirements, the system of registration and licensing

of all fishing vessels including non-mechanized country craft serves the urgent need to

provide an accurate record of the number of different types of fishing vessels operating

from the various bases/ports along the Indian Coast.

According to the World Bank,206 the current India fisheries legal framework is not

comprehensive, and it contains several loopholes, not updated and inconsistent with

India's international obligations. It emphasized on foreign access and development

rather than fisheries management and conservation. Moreover, India lacks an efficient

system to translate the advisories put forth by the research institutions into rules and

regulations for sustainable development.

NATIONAL FISHERIES POLICY 2020

The National Fisheries Policy2020 aims to consolidate the sectoral gains and ensure

sustainable growth through policy support to encourage and accelerate the production

of fisheries in a responsible and inclusive manner through multi-pronged strategies and

focused interventions to provide the requisite impetus to realize the full potential across

the country. The Policy sets out a straight forward roadmap for unhindered sector

205 Vivekanandan, ‘Sustainable Coastal Fisheries for Nutritional Security, Sustainable Indian Fisheries.

Pandian. TJ. (ed.), 200 I. pp. 19-42. National Academy of Agricultural Sciences, New Delhi 206World Bank, 2010. India Marine Fisheries: Issues, opportunities and transitions for sustainable

development. Report No. 54259-IN. 101p.

59

growth by optimally harnessing fishery capital in compliance with the best national and

international standards. It will also create a conducive climate for the fisheries sector to

draw investment. The Policy aims to reinforce the government program to double the

incomes of fishermen and fish farmers and double the exports to improve the lives and

livelihoods of Fishermen and their families. The NFP will include elements of the 'Blue

Growth Initiative' the 2018 Agriculture Export Policy, as well as the goals set under the

Sustainable Development Goals that India is committed to. The NFP serve as an

overarching policy mechanism that will provide direction to States and UTs in the

formulation of state-specific policies and laws with regulatory and structural

characteristics to be enforced through short, medium and long term plans. The NFP is

an emerging instrument open to analysis on the basis of changing needs and

technologies. It will be reviewed in consultation with stakeholders to ensure the policy

remains relevant and is in line with changing sector needs and requirements through an

institutional mechanism. It is developing an ecologically stable, economically viable

and socially inclusive fisheries sector that contributes to the economic prosperity and

well-being of fishers and provides safe and responsible food and nutritional protection

for the country.

INDIA'S STAND ON FISHERIES SUBSIDIES

Indian Fisheries sector is vast economic importance on account of its immense resource

potential, promising export growth, employment opportunities and its significance as

an inevitable source of animal protein.207 India's coastal communities track multiple

fishing and non-fishing activities and the majority of their profits comes from open

access / common Resource land.208 The sector is about to reach the significant phase of

high growth that would eventually bring the "Fish Revolution" to the waters of India,

both inland and at sea.209 Infrastructural facilities play a crucial role in catching fish and

delivery of the same to the ultimate consumers. Infrastructure growth gained

momentum in India after mechanised fishing vessels were introduced in Indian

Waters. During the inception of Mechanisation, the gear was still the same old gill nets,

but they were now nylon nets in contrast to conventional cotton, hemp, and linen yarn.

Later, trawlers were brought to prominence. This increase in gear and vessels saw an

207 A.G Kalwar and R.G Dandekar, “Bright prospect for Indian Fisheries, Journal of the Indian

Fisheries Association “167 (1988) 208 Ramachandra Bhatta ‘Socio Economic Issues in Fisheries Sector in India” 17 209 Id at 172

60

increasing demand for the Indian prawn from the USA and Japan. The returns were

impressive, and this led to the introduction of larger-scale mechanised vessels and the

modernisation of indigenous crafts for marine fishery production. These have proven

to be a significant foreign-exchange source.210

Subsidies have, for many years, been a controversial aspect of fisheries policy and

management. Fisheries subsidies are for a wide variety of purposes, including

promoting the growth of the industry, supporting rural economies, providing fisheries

facilities and support services, retiring fishing capacity and encouraging early

retirement for fishers.211 According to UNEP, the various subsidies to the fisheries

sector are fisheries Infrastructure (harbour and port construction, management services

(monitoring and surveillance, study management, fishing access subsidies, vessel

decommissioning subsidies, capital subsidies, income support for variable cost

subsidies and price supports212. Fisheries subsidies, however, are recognised as a

critical factor in generating overcapacity and sector overfishing. Although these

problems stem from many sources, including poorly structured national and foreign

management systems and inadequate implementation of legislation, the situation has

been aggravated by continued granting of subsidies. Although subsidies are potent

policy tool for governments to implement fisheries policy, many subsidy schemes are

poorly designed, with unclear targets and inadequate evaluation of the dynamic impact

on the industry and the rest of the Economy.213

Furthermore, subsidies once adopted tend to be very difficult to receive dismantling,

creating a subsidy dependency loop and reducing the stability and resilience of industry

and fisheries communities. Rapid technical development in vessel construction, gear

design, and techniques of storage, together with the continued availability of subsidies,

encouraged a "race to catch," with consequent adverse impacts on fish stocks. Except

in the mid-1960s, financial assistance reports to the fisheries sector prepared by the

Organization for Economic Co-operation and Development (OECD) urged its Member

States to limit themselves in granting subsidies and sought to boost the transparency of

210 Salagrama V. 2002 Fish out of Water: the story of globalization, modernization and artisanal

fisheries in India. In Proc. Asian Fisherfolk Conference 2002, 25-29 January Prince of Songkhala

University, Hat yai, Thailand 211 Anthony Cox &U Rashid Sumaila “A Review of Fisheries subsidies, Quantification, Impacts and

Reforms “116 (2010) 212 World Trade Agreements and Indian Fisheries Sector: Reflections and Upshots 213 Anthony Cox &U Rashid Sumaila “A Review of Fisheries subsidies, Quantification, Impacts and

Reforms “116 (2010)

61

the subsidy programs.214 OECD emphasised the correlation between subsidies and

overfishing.215

In India, the various types of subsidies include subsidies to the production of marine

fisheries, reimbursement of excise duty or exemption from sales taxes on fuel, subsidies

for kerosene, construction of fishing harbours and other infrastructures, support for

domestic marketing, processing facilities, subsidies for the promotion of aquaculture,

subsidies for various Research and Development Subsidies. Government of India

classifies subsidies into direct and indirect subsidies for the development of the fisheries

sector. Direct subsidies include those provided for the purchase of boats, gears and

engines, fuel subsidies and aquaculture assistance activities. Indirect subsidies are given

for financial assistance for various welfare schemes, port building, fishing harbours and

fishing landing centres, and post-harvest and market infrastructure growth. Amid these

subsidies, the subsidies for marine fisheries infrastructure development, post-harvest

operations and export are categorised as harmful subsidies. The third Five-Year Plan

and those that followed changed the emphasis from fisheries growth to helping the

small increase in export production.216

India has proposed to classify fisheries on the basis of socio-economic factors such as

low income and lack of resources.217 India also indicated that only the basics of fisheries

management should be integrated into the final discipline and that the scope for

implementation should be given to members on a case-by-case basis.218 India has also

argued in favour of subsidising high-sea fishing because developing countries are late

in the sector and would take time to catch up with the developed countries.219

Concerning India, the amount of subsidies received is much smaller, with less than 8%

of the overall value even though it is challenged internationally. India's marine fisheries

214 However, subsidies to the fisheries sector are dwarfed by agricultural support, which amounts to

around US$500 billion a year for OECD countries alone 215 OECD (1980). Financial Support to the Fishing Industry. Paris: Organisation for Economic

Co-operation and Development 216 Third Five Year Plan, Government of India, Planning Commission, Government of India Press, New

Delhi, 1961, pp.357-358

217 WTO Negotiating Group on Rules, Communications from Brazil, China, Indonesia and China dated

11/2/2008 (TN/RL/GEN/163) 218 Id 219 WTO Negotiating Group on Rules, Submissions by India, Indonesia and China dated 19/05/2008

(TN/RL/GEN/155/Rev.1)

62

sector is subsistence fishing and is very different from developed countries'

factory/commercial fishing.

Furthermore, the fuel subsidy is given amounts to less than 5 per cent of the overall

landing value. But in the Indian sense, on the other hand, the welfare initiatives, saving

cum relief, housing and other transfer payments add to the subsidy portion. It is also

essential that the good subsidies do not feature in the subsidy regime for Indian

fisheries.220 The goal of India would be to optimise S&DT access while opposing the

development of further divisions within the 'developing countries' segment. India aimed

to make the Hong Kong mandate real in that 'fair and effective special and differential

treatment for least-developed and developing countries should be an integral part of the

fisheries subsidy negotiations, taking into account the value of this sector for

development goals, poverty reduction and food security concerns. The prohibition of

subsidies which trigger excessive fishing effort and harm fishery resources can and

must be reconciled with the vital role of fisheries in developing countries' economic

development. The provision of subsidies by fish workers on an individual or family or

association basis or by micro-enterprises or boat owners to low-income resource or

livelihood fishing activities shall not be prohibited. Concerning the small-

scale, artisanal fisheries, India and the like-minded countries put forward a concept

based on socio-economic parameters, inspired by Article 6.2 of the Agriculture

Agreement.221 In the procedural aspect, India has always challenged developed

countries' stance not to put the element of the fishery subsidy into the general

discussions on subsidies. The question is whether these countries' original intention is

only to fix the trade inequalities caused by subsidies or to introduce unnecessary trade

problems into the discussion of subsidies. However, as Kurien (2006) has stated,

subsidies in developing countries play a crucial role in the livelihoods of marginalised

communities and are minuscule compared to those offered in developed countries.

220 Id at 38 221 See Article 6.2 of Agreement on Agriculture- In accordance with the Midterm Review Agreement

that government measures of assistance, whether direct or indirect, to encourage agricultural and rural

developments are an integral part of the development programme of developing countries, investment

subsidies which are generally available to agriculture in developing country members and Agriculture

input subsidies generally available to low-income or resource-poor producers in developing country

members and agricultural input subsidies generally available to agricultural in developing country

Members and agricultural input subsidies generally available to low-income or resource-poor producers

in developing country Members shall be exempt from domestic support reduction commitments that

would otherwise be applicable to such measures, as shall domestic support to producers in developing

country Members to encourage diversification from growing illicit narcotic Crops.

63

Subsidies and state interference are essential to help small-scale fisheries worldwide

and are necessary for promoting sustainable practices.222 In developed countries, the

major fishing companies use massive factory ships to process their catch. Small-scale

Indian fishers point out that their problems arise not from subsidies but the open-access

system for international trawlers. From their perspective, specific rules banning

subsidies would limit governments' ability to help small-scale fishers and protect

coastal ' food security’.223

MARINE PRODUCT EXPORT DEVELOPMENT AUTHORITY

The Marine Product Export Development Authority (MPEDA) provides subsidy

funding for export promotion in culture and catch fisheries industries, as well as

infrastructure development and business promotion schemes. According to a study

conducted by MPEDA in 2002, during the ninth five-year plan the total direct subsidy

component contingent on export was trivial (less than Rs.100 crore) compared to the

value of marine exports Rs. 26, 842 crores in the same period. The Marine Product

Export Development Authority (MPEDA) offers a subsidy for promoting culture and

capture fisheries production and trade. Some of the schemes of MPEDA include:

Export Production - Capture Fisheries: This scheme includes financial assistance for

the installation of insulated / Refrigerated Fish Hold, Refrigerated Sea Water System

(RSW) and Ice Making Machine on board mechanised fishing vessels, Financial

assistance for the conversion of existing fishing vessels to Tuna Long Liners and

Financial Assistance for the Construction of New Tuna Long Liners.224 In the case of

culture fisheries, subsidy aid is for the production of new farms, the establishment of

small and medium-sized hatcheries, the establishment of PCR labs, the effluent

treatment system (ETS) in shrimp farms and also for organic shrimp and scampi

farming.225

Induction of emerging technologies, modernisation of manufacturing facilities, and

infrastructure development- Financial assistance for Basic Facilities (New) for Chilled

222 John Kurien Untangling Subsidies, Supporting Fisheries: The WTO Fisheries Subsidies Debate and

Developing- country Priorities (2006) 223 Shyam S. Salim and R. Narayanakumar Manual on World Trade Agreements and Indian Fisheries

Paradigms: A policy Outlook 295 (2012) 224 Aswathy N and Shyam. S. Salim ‘Subsidies in Indian fisheries- Methodological issues and

implications for the future.208 (2012) 225 Id at 209

64

Fish / Chilled Tuna for Export, Technology Upgrade Scheme for Marine Products

(TUSMP), Subsidy for the Establishment of New Modern Ice Plant / Renovation of

existing Facility, Financial support for the Acquisition of Refrigerated Truck /

Containers, Financial assistance for the Establishment of Large Cold Storages

Subsidised Distribution of insulated Fish Boxes. This scheme includes interest subsidy

assistance for seafood units to promote up-gradation and growth assistance for the

export of ornamental / aquarium fish. Besides, under market promotion scheme of

MPEDA, Group Insurance Coverage for workers employed in the pre-processing and

processing plants is given. The employer will pay the premium of the insurance,

employee and MPEDA in a ratio of 50 per cent, 25 per cent.

Capital construction and infrastructure subsidies: Subsidies or grants for the

procurement or modernisation of vessels, motors, fishing gear and other fishing

equipment (iceboxes, GPS, communications systems, fish finders) in the craft and

mechanised sectors; subsidies for small-scale and large-scale operators for land, capital

costs and working capital aid in aquaculture. Development of exploratory fishing gear

and aquaculture; State investment in fisheries – Fisheries Development Corporations;

Safety Equipment Grants; disaster preparedness and mitigation facilities and

equipment; Infrastructure – ports, harbours and jetties, fuel stations, access roads to

fishing harbours and landing centres. The numerous fishery development initiatives

such as the motorisation of crafts and the rebate on HSD oil and the construction of

fishing harbours are included within the WTO subsidy class as they specifically

facilitate fishing operations. Within the WTO concept, assistance for the development

of fishing harbours is an indirect subsidy. Furthermore, the NFDB promotes fisheries

through the construction of fishing harbours, support to fish markets and deep-sea

fishing. The harmful subsidies included fuel subsidies and financial assistance for

purposes such as boat building and expansion, fishing ports construction and

reconstruction, market and storage facilities, and other fishery growth and support

services. 226

226 Id at 210

65

ANALYSIS OF FISHERIES SUBSIDIES UNDER DIFFERENT INDIAN

STATES

The various types of fishing subsidies in the state of Kerala included the central

government grant for development of marine fisheries, the construction of fishing

harbours, the reimbursement of sales tax on HSD oil227 for fishing boats and the subsidy

of kerosene to motorized boats. The Govt. Karnataka provides various subsidies to the

marine fisheries sector consisting of the reimbursement of HSD oil, the exemption from

VAT and the motorisation of traditional craft. The Government also provides various

assistance schemes for fishermen's welfare. Among these is the tax exemption for HSD

oil and assistance for the motorisation of crafts as a fishing initiative to raise

subsidies.228 The states of Karnataka and Maharashtra give the marine fisheries sector

100 per cent sales tax exemption. The total amount of subsidies provided in the marine

fisheries sector amounts to 23 per cent of Maharashtra's total value of marine fisheries

production.

FISHERIES DEVELOPMENT UNDER FIVE YEAR PLANS

The central government has played an essential role in the growth of the fisheries sector,

as there is a clear connection between the outlay of central sector schemes and the share

of the agricultural expenditure of fisheries. Scheme-wise spending under various five-

year plans shows that over the different five-year plans, the spending on fisheries

production has increased impressively.229 Planning Commission of India is established

in March 1950. Since September 1950, the Commission cooperated with Central and

state government, to analyse the schemes in-depth under execution and those suggested

for inclusion in the First Five Plan for the Year.230 The Five Year Plans were drawn up

with the goals of improving fishing techniques and equipment, improving methods for

processing, maintaining and transporting fish, rationalising marketing arrangements,

landing facilities, ice and cold storage facilities and improving socio-economic

227 HSD stands for High Speed Diesel in oil Industry. It is normally used as a fuel in medium and high

speed compression ignition engines that are operating above 750 rpm in commercial vehicles,

stationery diesel engines, locomotives etc. 228 Id at 212 229 A.K. Vasisht and D.R. Singh ‘An Analysis of Capital Formation in Fisheries Sector in India 823

(2009) https://www.researchgate.net/publication/263091262 230 Five year plans and fishing available at

https://shodhganga.inflibnet.ac.in/bitstream/10603/139493/11/11_chapter%204.pdf accessed on 16th

May 16, 2020

66

conditions for fishers. The State has also helped the fishermen in procurement fishing

specifications such as synthetic twine, cotton yarn, floats, hooks and lines and giving

nylon and other accessories subsidies at all times.231

The two problems highlighted in all the Five Year Plans are poverty and

unemployment. Poverty eradication has been identified as one of human society's

biggest challenges. Indian fisheries, though very underdeveloped, contribute annually

about Rs.10 crores to National income before the First Five Year Plan. Fish is rich in

proteins, minerals, vitamins, and salt. Over considerable areas, it forms an essential

constituent of the diet. Fisheries growth is, therefore, one of the most promising ways

to improve people's food.232

The inadequacy and in exactitude of current fisheries statistics have discussed by

several committees. The report published by Marketing and Inspection Directorate on

the marking of fish is the primary source of information. The Central Marine Fisheries

Research Station has obtained some valuable data about marine fisheries. The Technical

Committee on the coordination of Fisheries Statistics had looked in depth at the topic

of statistics. Consequently, the report was issued in 1950, and the situation would

gradually strengthen the enforcement of its recommendations by the central and state

governments. As a result, a total of Rs.8 lakhs for fisheries enhancement had given in

the First Five Year Plan.233The economic situation in India was unpalatable at the

beginning of the First Five Year Program in 1951-56. The First Five Year Plan

emphasised not only agriculture but also developing new subsidiary dairy and fishery

food sources. The states even formulated their plans in line with the national strategy

that included fisheries development. For the first time, the attention was given to the

fisheries. During the first five year Plan, special attention was paid to certain aspects of

marine fisheries production through country craft mechanisation Implementation of

modern mechanised vessels, charting of deep-sea fishing, provision for training and

facilities for fishing234 with a total outlet of 196.5 lakhs. Implementation of these

schemes gave significant impetus to the improvement of existing fishing methods.235

For marine fisheries development, the plan recommended Mechanisation of already

231 G.O.Ms.No.244, Agriculture Department, dated 25th July 1996, TNA. 232 The First Five Year Plan, Government of India, Planning Commission, 1951, p.306. 233 Id at 306 The First Five Year Plan, Government of India, Planning Commission, 1951, p.306. 234 Subba Rao, N., Economics of Fisheries, Deya Publishing House, Delhi, 1986, p.122 235 Development Scheme in the First Five Year Plan, Planning Commission, Government of India,

December, 1952, p.55

67

existing boats. The Indian government has contracted a naval architect's services to

advise on the modification that will be required for power fishing in indigenous

vessels.236 In the first five year plan, 50.5 lakhs was allotted for the "Marine Fishery

Research and Development. The Government of India also stressed that the

aforementioned money should be used marine fisheries development and research

activities.237 An evaluation of the 1956-61 Second Five Year Program reveals that

it was drafted for the development of marine and inland fisheries and to provide funding

for research and Socio-economic development of fisheries.238 Some of the significant

schemes included in the second five-year plan are related to the construction and

distribution of mechanised fishing vessels, the supply of nylon nets and hooks to fishers,

the creation of fishing harbours at the suitable mouth of the river, the provision of ice

plants and cold storage facilities, and the construction of model fish markets, in-shore

and offshore fisheries, as well as improved techniques. The allocation for the year 1956-

57 was Rs.11, 89 lakhs under Second Five Year Plan, and the outlay was Rs.12.98

lakhs. The Additional Head of Industries and Commerce was expected to see that all

the schemes worked more vigorously because successful marine fisheries

developments depend on those systems are introduced.239 The critical plans presented

within the marine sector included assistance to fishers cooperative marketing societies,

salt subsidy scheme, scheme for the construction of fishing harbours at appropriate river

mouths, development of fishing crafts, the supply of nylon net at subsidised rates to

fishers, preservation of fish. The Second Plan provides for the expansion of existing

activities related to the Mechanisation and development of better methods of

fishing.240The Second Plan provides for loans to be distributed to fishers via

cooperatives in order to discharge their previous debts with the intermediaries and to

buy and tackle craft and to build curing sheds and godowns.241 The Third Five Year

Plan (1961-66) makes no shift in fisheries development policy. In the third plan, the

236 The Progress of the Plan, A short survey of the working of the Five Year Plan from April 1951 to

September 1953, Government of India Planning Commission, Government of India Press, New Delhi,

1953, pp.23-24. 237 G.O.Ms.No.3236, Agriculture Department, dated 2nd November 1954, TNA. 238 Andhra Pradesh Review of Progress, 1956-57 to 1960-61, Government of Andhra Pradesh,

Hyderabad, 1962, p.238. 239 G.O.Ms.No.709, Food and Agriculture Department, dated 28th February, 1958,TNA 240 Second Five Year Plan, Government of India, Planning Commission, 1956, p.292. 241 Five year plans and fishing available at

https://shodhganga.inflibnet.ac.in/bitstream/10603/139493/11/11_chapter%204.pdf accessed on 16th

May 16, 2020

68

different programs undertaken in the first and second plans were further accelerated.242

Fishery income can be significantly increased through the use of improved techniques

in all aspects of production and utilization of fisheries resource.243 The total budget

allocation under the third five-year plan (1961-66) for the development and various

schemes for the improvement of the fisherman was 222 lakhs. The key objectives of

the scheme contained in the Third Five Year Plan are threefold as shown below:

Production of fish which is a protein food of high nutritional value, increasing the socio-

economic status of the fishermen's community and developing the fishing industry with

modern and well- scientific lines as in other developed countries.244 The establishment

and operation of fisheries cooperatives was a significant aspect of the Third five-year

plan. Fishers usually didn't own Ships, nets, and other fishing equipment.245 The

Cooperatives are an indispensable means for preventing exploitation of fishers by the

middlemen. The fourth five-year plan had three central goals with respect for the

development of fisheries. They were increasing the production of fishing in order to

meet the protein diet requirements, improving the export potential and uprising the

economic conditions of the fisherman.246 Provisions were made in the fourth five-year

plan for the marine fisheries development, deep-sea fishing, processing, storage and

export and other miscellaneous programmes.247 The subsidy on boats was reduced by

50 per cent on engines and 25 per cent on hulls during the fourth five-year plan.248

The fundamental goal of the Fifth Five Year Plan (1974-1979) was the substantial

increase in the fisheries production in order to improve the Socio-economic conditions

for fishermen to increase the employment opportunities and boost the domestic

marketing mechanism for fish and fishery products.249 The major endeavours pursued

numerous steps in the fifth plan, such as enhancing country boat construction, more

extensive use synthetic twine, ice and cold storage facilities, and fish stocks cure yards

at various centres. Three approaches towards Deep Sea fishing in the fifth five year plan

include expansion of surveys and explorations, attempts to implement sufficient

242 Third Five Year Plan, Government of India, Planning Commission, Government

of India Press, New Delhi, 1961, pp.357-358. 243 Id 244 Id 245 Id at 359 246 Fourth Five Year Plan (1969-74), Madras State Draft Outline, 1968, Government

of Tamil Nadu, p.8. 247 Id at 58 248 Id at58-59 249 Draft Five year Plan, 1974-79, Vol.II, Government of India, Planning Commission, p.34.

69

number of large fishing vessels and to establish fisheries harbours and ancillary

processing and distribution services. Under the scheme named "assistance to the

mechanised fishing crafts" 4750 mechanised fishing crafts were introduced under fifth

five year plan. Other significant schemes under the plan include the establishment of

shipbuilding yards and other pilot projects. One of the pilot programmes were related

to demonstration of fish processing while others were linked to the technical and

economic feasibility of new process technique vessels or material/equipment. Under

the successive five year plans, the State Fisheries Department was introducing various

planning schemes.

During the Sixth Plan era, the Union Planning Commission approved an outlay of

Rs.2,400 lakhs for fisheries development in the Tamil Nadu. This outlay includes a total

of Rs.1,000 lakhs for the implementation of externally assisted projects as envisaged in

the Sixth Plan proposals. The Sixth Plan sought to increase the development of marine

and inland fish from the State to the point of 3.00 lakhs and 2.10 lakhs, respectively

from the base level of 2.17 lakhs and 1.60 tones. The Sixth Plan introduced 500 FRP

boats and allocated it on 20 percent subsidy basis. The balance costs 80 percent is from

Company Banks. A total of Rs.32 lakhs had approved up until 1983-84. To this end,

190 boats were allocated out of 500 vessels.

Nevertheless, the Fishermen Co-operative Societies had distributed several boats.250

The National Co-operative Development Corporation (NCDC) had been rendering

financial assistance to cooperative societies through the state governments for

purchasing boats and godown construction.251 During the sixth five year plan, 294

marine Fisherman Cooperative societies and 10 Women Co-operatives were

established. Under the sixth five year plan, these societies were granted a financial

assistance of Rs 20 lakhs to procure fishing equipment and to provide medical loans to

the fisherman. This plan also incorporated intensified efforts to boost brackish water

prawn farming in the States. Funds were provided for the construction of or import of

large trawlers in the country. Building facilities to enable the operation of large trawlers

in fishing harbours, promotion for exports were the important steps incorporated under

250 Id 251 The National Cooperative Development Corporation is a statutory corporation set under an Act of

Indian Parliament on March 13 1963.

70

his plan.252 The seventh five-year plan aimed at promoting prawn and hatchery farming

and also developing deep-sea fishing fleets by importing and building large-scale

trawlers. Thereby strengthening the domestic marketing of fish, diversifying fish

products, motorising country crafts. The seventh five year plan was an addition to the

sixth five year plan. Pattern of financial assistance under this plan include 20 percent

subsidy, 20 percent beneficiary share and 60 percent bank loan. The plan resulted in the

distribution of 4000Kg of nylon webbings with 20 percent subsidy and 80 percent loan.

Under this plan Accident Insurance Scheme was introduced for the fishers. Insurance

scheme covers death and disability with a premium of 9 per cent per fisherman.253 The

State and central government share the premium equally. In case of death or permanent

disability a sum of Rs 15,000 is paid as the sum insured whereas in the case of in the

case of partial disablement a sum of Rs 7905 was given.

The eighth five-year plan aimed to increase the fish and prawn seed production to raise

inland food production.254 This five-year plan focuses on the State's capability to go in

to for the deep sea fishing. The total outlay of the eighth five-year plan was 31.50

crores. The ninth five-year plan intends to increase the deep sea fishing by motorisation

of traditional craft, by providing subsidies for the purchase of fishing nets and other

types of equipment for fishing, and export of fish. Investment in fisheries research has

increased under periods of the programme, and the government has given priority to

this sector. However, more public investment in fisheries science still has scope to

realize future research benefits. Growing public and private investment is also required

to reinforce infrastructure to diversify fishing activities to increase fish production,

productivity and exports. Private sector investment in fisheries can also play an

essential role in the production of seeds and feed, adapting existing technologies for

higher output, development of human resources, post-harvest management as well as

marketing.

Once the fundamental principles for the conservation and management of high-seas

fisheries had been accepted, the question remained on how to bring them into action.

The coastal states shall have specific authority to implement effective rules and

252 James, P S B R (1987) Growth profile of marine fisheries in India. CMFRI Bulletin: National

Symposium on Research and Development in Marine Fisheries Sessions I & II 1987, 44 (Part -). pp.

10-27. 253 Seventh Five Year Plan, 1985-90, Vol. II, Government of India, Planning Commission, New Delhi,

October 1985, p.34. 254 Eighth Five Year Plan, 1992-1997, Tamil Nadu State Planning Commission, January 1993, pp.121-

122.

71

measures to the degree that action is necessary in areas under national jurisdiction to

this effect. Existing policies for fisheries Management in India revolve mainly around

populist welfare measures.255 Overall, the country needs a firm fisheries policy that

balances welfare concerns with sustainability. Because of lack of resources, small

budgets, weak institutional coordination, and opposition from fishermen, many

regulations are not adequately enforced. This requires the attention to causative factors

and appropriate participatory mechanisms or co-management arrangements to enable

regulatory measures to be implemented more effectively. Fisheries should take

necessary steps for the regulation of fishing. Fishery authorities should provide

information on potential resource production and existing fishing capacity and

processing capacities to commercial banks and funding institutions. Such organisations

could prevent inefficiencies by regulating credit availability or issuance of foreign

exchange authorisations.256 This approach would be suitable for the Indian background,

because the mechanisation scheme is entirely funded by government subsidies. Another

key to efficient management is the registration and licensing of all powered fishing

vessels. It provides direct information on fishing capacity, and this is a prerequisite for

planned development.

CONCLUSION

Fisheries sector plays an inevitable role in the socio-economic development of Indian

Economy. The sector has been approved as the powerful employment and income

generator since it promotes the growth of large number of subsidiary industries. Fish is

an important source of protein for large million people in India. Before independence,

the marine fisheries sector are at subsistence level, but later motorized crafts and

sophisticated fishing vessels has been used. Fisheries subsidies in a way contributed

towards overfishing. Fisheries subsidies negotiations at the WTO aims to prohibit

subsidies that contributes to overfishing and overcapacity. Some Members of WTO

stood for the broad ban approach. This would adversely affect developing countries like

India whose economy is largely depended on fisheries directly or indirectly. So India

and other SVEs insist on ban of subsidies that contributes to overfishing.

255 E. Vivekanandan, M. Srinath etal, ‘Marine Fisheries Along the Southwest Coast of India

757(2003) 256 Manjula Shyam, The Emerging Fisheries Regime: Implications for India, 8 Ocean Dev. &

Int'l L. 35 (1980).

72

CHAPTER V

UNITED NATIONS SUSTAINABLE DEVELOPMENT GOALS AND

FISHERIES SECTOR

Our oceans — their temperature, circulation, chemistry, and ecosystems — play a

fundamental role in making Earth habitable.

Our rainwater, drinking water, weather, climate, coastlines, much of our food, and

even the oxygen in the air we breathe, are all ultimately provided and regulated by

the sea. Throughout history, oceans and seas have been vital conduits for trade and

transportation. Careful management of this essential global resource is a key feature

of a sustainable future."257

Communities, nations, and the world as a whole want to express common priorities and

to build ways to monitor their progress. Stock holm conference of 1972 paved the way

for the union of industrialized and developing nations for discussing the issues and

challenges for sustainable development.258 It was the first international measure that

examines the right of the people towards a healthy and productive environment, but it

failed to address the issues of high seas specifically. The principle 7259 of the

Stockholm Declaration, speak about the obligation of the states to take all possible

measures to prevent substances which are harmful to marine life or interfere with

legitimate uses of the sea.260 The word 'sustainable development' as such has still not

been coined, let alone applied to ocean governance.261 While the Stockholm Conference

symbolized the emergence of an environmental consciousness in international law in

257 United Nations ‘Sustainable Development Goal 14, Conserve and Sustainably Use the Oceans, seas

and marine resources. https://www.un.org/en/conf/ocean/background.shtml 258 Otto Spijkers & Natalia Jevglevskaja, Sustainable Development and High Seas Fisheries, 9 Utrecht

L. Rev. 24 (2013). 259 Principle 7: Prevention of Pollution of Seas: States shall take all possible steps to prevent pollution

of the seas by substances which are liable to create hazards to human health, to harm living resources

and marine life, to damage amenities or to interfere with other legitimate uses of the seas. 260 See Compilation Document - Rio+20 - United Nations Conference on Sustainable Development

(Major Groups), available on the website of the conference:

<http://www.uncsd20l2.org/rio2o/content/documents/compilationdocument/MajorGroups.pdf>, p. 584

(last visited 20 April 2020).

261 See generally N. van der Burgt, The Contribution of International Fisheries Law to Human

Development, 1997, pp. 33 et seq. See also P. Birnie & A. Boyle (eds.), International Law and the

Environment, 2009, p. 380

73

the early 1970s, another fifteen years had to pass before the World Commission on

Environment and Development's Report, 'Our Shared Future, or the Brundtland

Report,262 Adopted the idea of sustainable development and popularized it in the

international sphere. The Brundtland report addressed environmental and development

issues facing the world as one common challenge to be solved by collective multilateral

action. Recognizing that high seas outside of national jurisdiction are indeed 'common

heritage of humanity, the Report emphasized the necessity of international effort to

secure the high seas' and fisheries' efficient management.263 Agenda 21, which was

adopted in the same conference, has made some reference to the sustainable

development of oceans, and it continued to serve as a critical instrument on sustainable

development.264 The Secretary-General recently referred to it as 'the most

comprehensive and useful action plan ever initiated by the international community to

safeguard the interests of future generations.265 Chapter 17 of Agenda 21 set in motion

several new elements not yet enveloped by the UNCLOS266(United Nations

Convention On Law of Sea) including a prominence on unified and precautionary

approaches to the protection of the coastal and marine environment. It focuses on the

prevention of environmental degradation rather than controlling the Causes of

Pollution.267 Agenda 21 cannot amend UNCLOS, and is not binding on the states

unless the states ratify the same. But it can be taken into consideration when interpreting

or enforcing the Convention. Besides, it has had the effect of stimulating legal

developments in the field of sustainable use of oceans. The impact of Agenda 21 shows

how a more conceptually sophisticated emphasis on the safety of the marine

environment has developed out of UNCLOS Part XII in general, and subsequently also

262 The Report was given this title after the chairperson of the commission, the then Prime Minister of

Norway, Mrs. Gro. Harlem Brundtland. The Brundtland Commission defined sustainable development

as 'development that meets the needs of the present generation without compromising the ability of future

generations to meet their own needs', see World Commission on Environment and Development, Our

Common Future, 1987, p. 43. 263 UN Doc. A/42/427, p. 259, Para. 7 264 See in general with regard to Agenda 21 Chapter 17: 5. Bateman, 'Technical Cooperation for

Sustainable Development: Capacity Building',in M. Kusuma- Atmad ja et al. (eds.), Sustainable

Development and Preservation of the Oceans: The Challenges of UNCLOS and Agenda 21,

1997, pp. 783 et seq.; S. Kaye, International Fisheries Management, 2001, pp. 201 et seq.; See also

Birnie & Boyle, supra note 8, p. 745; 265 Oceans and the law of the sea: Report of the Secretary-General (Addendum), UN Doc. A/66/70/Ad

d.1, para. 12. 266 United Nations Convention on the Law of the Sea, Montego Bay, 10 December 1982, in force 16

November 1994, 1833 United Nations Treaty Series 396; <wwwun.0rg/Depts/Ios> (last visited 20 April

2020). 267 Birnie & Boyle p. 384.

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out of UNCLOS Part VII dealing with, among other things, the high seas environment

and fisheries.268This is the One of the key issues discussed at the World Summit on

Sustainable Development (hereinafter "WSSD" or "World Summit") held in

Johannesburg, South Africa in September 2002 was the rapid and drastic decline in

world fish stocks and the international response to the global fish crisis.269 Attended by

tens of thousands of participants from 191 countries, the WSSD was convened by the

United Nations to promote the ambitious goals set forth ten years earlier at the United

Nations Conference on Environment and Development (hereinafter "UNCED" or

"Earth Summit") in Rio de Janeiro objectives of "poverty eradication, changing

unsustainable patterns of production and consumption, and protecting and managing

the natural resource base of economic and social development."270 The concept of

sustainable development remains intangible though it has become anchored and widely

diffused in International debate.271

SUSTAINABLE DEVELOPMENT GOALS

Heads of State and Government decided in September 2015 to set the world on a path

to sustainable development by the implementation of the Sustainable Development

Agenda 2030.272 Sustainable Development Goals (SDGs) are the agreements to provide

a comprehensive agenda for action to support transformations towards social,

economic, and environmental sustainability. 17 Sustainable Development Goals

(SDGs) and 169 targets will guide the activities of diverse actors over the next 14 years.

Such goals are "global in nature and broadly applicable, taking into account the various

national realities, capacities and development levels and respecting national policies

and priorities.273 We mark a significant contribution on the part of UN member states

to truly achieve sustainable development. The goals include a basis for joint action "for

268 Brine and Boyle P.384 269 World Summit on Sustainable Development, 2002 (hereafter "WSSD"), See generally,

www.johannesburgsummit.org, and Report of the World Summit on Sustainable Development, available

at http://ods-dds-ny.un.org/docUNDOC/GEN/NO2/636/93/PDF/N0263693.pdf (last visited April 20,

2020). 270 United Nations Conference on Environment and Development (1992) [hereinafter "UNCED]. The

quote is from the WSSD, Plan of Implementation, Id. at Paragraph 2.

271 Elisbeth Burg Bonami “sustainable Development in International Law Making and Trade International

Food governance and Trade in Agriculture9(1st ed.2015) 272 The United Nations (2015) Transforming our world: the 2030 Agenda for Sustainable Development.

Available at https://sustainabledevelopment.un.org/post2015/transformingourworld. 273 Id

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people, planet and prosperity," to be adopted in mutual cooperation by "all countries

and all stakeholders.274 The whole planet faces dire threats to the environment from

human-induced climate change and the depletion of biodiversity. Poor governance,

corruption, and violent confrontation in dramatic situations, afflict most of today's

country. The SDG Agenda tackles these composite issues and is thus more detailed and

complex than the MDGs. Most notably, it takes sustainable development as the guiding

principle of global collaboration, implying the combination of economic growth, social

inclusion, and protection of the environment. Consequently, the overarching name

“Sustainable Development Goals,” as the key message to the world community.

Furthermore, the SDGs and related agenda apply to all countries, developed and

developing alike. The outcome document for the SDG Agenda summarizes the scope

of these issues by stating that the SDG system would promote action on five main

themes: people, planet, prosperity, peace and partnerships275

The SDGs are a continuation to the Millennium Development Goals (MDGs) of the UN

which expired in 2015. The SDGs draw on the momentum of the eight Millennium

Development Goals negotiated in 2000 to halve extreme poverty by 2015 as a norm

towards eradicating all forms of poverty.276 The (MDGs) of 2000 made an attempt to

compensate for the autonomous concentration of wealth by focusing on ensuring

dignity for the very most unfortunate people.277 It unified people in different parts of

the world and various capacities to implement the MDGs, even though the results have

been uneven. Negotiations on the follow-up to the now-expired MDGs have widened

the breadth of discussions to include ecological issues and the possible solutions.

Finally, they have led to the adoption of a document entitled 'Transforming our World:

The 2030 Agenda for Sustainable Development' which provides for the sustainable

development goals (UNGA 2014) under the auspices of the United Nations General

274 Getting started with Sustainable Development Goals UNSDSN, 2015 available @

https://sustainabledevelopment.un.org/index.php?page=view&type=400&nr=2217&menu=1515 275 Sustainable Development Solutions Network. (2013). An Action Agenda for Sustainable

Development. Report for the UN Secretary-General. Paris, France and New York, USA: SDSN.

Available at http://unsdsn.org/wp-content/uploads/2013/06/140505-An-Action-Agenda-for-

Sustainable-Development.pdf 276 Getting started with Sustainable Development Goals UNSDSN, 2015 available @ https://sustainabledevelopment.un.org/index.php?page=view&type=400&nr=2217&menu=1515 277 Joyeeta Gupta& Courtney Vegelin ‘ Sustainable Development Goals and Sustainable Development

435(2016)

76

Assembly. Social inclusiveness is a wider concept which was expressed in Millennium

Development Goals (MDGs) has its ramifications in human rights, rural development,

inequality, redistribution, entitlements and capabilities concepts. Out of 17 sustainable

Goals 13 stress on social inclusiveness, at the same time taking in to account ecological

and relational aspects. Goal 1 is intended to end all forms of poverty and it declared

that poverty cannot be measured in terms of lower-income countries and it is not

exclusively located in poor or local income countries. . It tries to eradicate the extreme

poverty by ensuring social protection systems and access to basic resources. Goal 2

attempts to end hunger and malnutrition by 2030 by increasing the productivity and

incomes of small scale food producers. Goal 10 aims to promote the social economic

and social inclusion and to reduce inequality.

SUSTAINABLE DEVELOPMENT GOAL14- LIFE BELOW WATER AND ITS

INTERCONNECTIVITY WITH OTHER SDGS

2030 agenda for Sustainable Development and its comprehensive category of 17

interconnected Sustainable Development Goals (SDGs) offer a unique opportunity to

advance ocean sustainability.278 The development of a robust implementation

framework for the Sustainable Development Goal for the Oceans (SDG 14) is a critical

step towards this overarching objective. It provides the opportunity to address complex

ocean sustainability challenges through regionally coordinated cooperation across

sectors and with a broad spectrum of actors. By the adoption of the 2030 Agenda, the

United Nations has realized the state of affairs, ranking the health of the world's oceans

among the most pressing development challenges. The stand-alone Sustainable

Development Goal on the oceans and coasts (SDG 14) calls on the international

community to: "Conserve and sustainably use the oceans, seas and marine resources for

sustainable development."279 This goal provides opportunities to facilitate concrete

actions for ocean sustainability and to foster greater integration among the different

sectors of ocean governance.

Crucially, the 2030 Agenda acknowledges the need to take cross-cutting, cooperative

and trans-boundary action to tackle challenges of growth. This invites policymakers to

engage in sustainability through a nexus approach that stresses interdependencies and

incorporates sector-wide governance, management, and intervention. The essence and

278 Joyeeta Gupta& Courtney Vegelin ‘Sustainable Development Goals and Sustainable Development

435(2016) 279 Sustainable Development Goal 14

77

intensity of the interactions between the 2030 Agenda's various goals and targets are

complex and context-specific, ranging from synergistic to antagonistic

interdependencies. For example, commitments to maintain economic growth in the

least developed countries or to promote job creation and the growth of micro, small and

medium-sized enterprises (SDG 8), and initiatives to protect and restore marine and

coastal ecosystems (SDG 14) may counteract each other when established in isolation.

Likewise, the benefits of the synergies emerging from the inextricable relation between

sustainable fisheries and the effective and productive use of natural resources (SDG 12)

could well go untapped if not properly established in the follow-up and review process.

The United Nations "Regular Process for Global Reporting and Assessment of the State

of the Marine Environment Including Socioeconomic Aspects" may serve as a forum

of expertise for tracking and evaluating efforts to achieve the Oceans' Sustainable

Development Goals. This could be further established in order to reflect on the broader

objectives of SDG 14, taking into account not only its targets but also those goals and

targets in the 2030 Agenda which have a direct effect on its achievement. The World

Ocean Assessments performed through the Regular Process could thus become the

cornerstone of a global thematic oceans and coasts analysis in support of the 2030

Agenda in the future

TARGET 14

Despite widespread international awareness of the role of the ocean in the

implementation of each of the three pillars of sustainable development, SDG 14 seems

to prioritize environmental conservation without sufficiently affecting the ocean's

contribution to poverty alleviation (SDG 1), hunger-fighting (SDG 2)280 and human

health (SDG 3)281. Thus, while the explicit integration of the ocean into a stand-alone

SDG can be hailed as a much-needed move forward compared with the MDGs, SDG

14 may ultimately fail to resolve the limitations of conventional, sector-specific

approaches to marine management282 and the persistent fragmentation of international

280 Fisheries and aquaculture provide at least 50% of animal protein to millions of people in low

income countries. See FAO, The State of Food and Agriculture: Climate Change, Agriculture and Food

Security, Food and Agriculture Organization of the UN (UN FAO), Rome, 2016 281 UN, A new global partnership: Eradicate poverty and transform economies through sustainable

development, Report of the High-Level Panel of Eminent Persons on the Post-2015 Development

Agenda, New York. 282 R.G. Aisi, Statement delivered on behalf of the Pacific Small Island Developing States at the 10th

Session of the OWG, 31 March-4 April 2014.

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ocean governance283. The SDG 14 targets and Means of Implementation (MoIs) with a

specific socioeconomic aspect can be divided into two groups. Firstly, commitments

aimed at supporting the sustainable development process in developing countries

include Goal 14.7, which calls for enhanced economic gains from the sustainable use

of marine resources for Small Island Developing States (SIDS) and LDCs and MoI

14.a, which provides for enhanced scientific expertise, research capacity building and

marine technology transfer, with a view to enhancing the contribution of marine

biodiversity to the development of developing countries.284 The second category

consists of obligations related to the sustainable development of fisheries sector.285 It

includes aim 14.6, which provides for "appropriate and effective special and

differentiated treatment" of developed States and LDCs in negotiating restrictions on

unfair fishing subsidies, and MoI 14.b, which calls for small-scale artisanal fishermen

to have access to marine resources and markets. However, these essential targets and

MOIs may probably represent a very limited transition vision, concentrating only on

the needs of developing countries or on the sustainable development of a single

economic field, but failing to integrate multifaceted elements such as participatory

coastal management, gender equality and human rights286, which were highlighted

repeatedly during the aim setting process.287 Knox noted that SDG 14 will include

comprehensive environmental standards to assess whether States fulfill their

international obligations to protect against interference with human rights resulting

from environmental harm and whether an adequate balance has been achieved between

environmental protection and economic growth.288 Such a reading implies a

constructive interpretation of those SDG 14 goals which affirm established

international commitments in line with the equity aspect of relevant international

normative guidance.

283 Global Ocean Commission, From decline to recovery: A rescue package for the Global Ocean,

Global Ocean Commission, Oxford, 2014 284 E. Morgera, M. Ntona, Linking small-scale fisheries to international obligations on marine

technology transfer, Mar. Policy (Spec. Issue SDG Synerg. Sustain. Fish. Poverty Alleviation) (2017).

https://www.sciencedirect.com/science/article/pii/S0308597X17303238 285 Ntona, M., Marine Policy (2017), http://dx.doi.org/10.1016/j.marpol.2017.06.020 286 A. Norton, A. Scott, P. Lucci, W. Avis, Taking the Sustainable Development Goals from ‘Main

Basis’ to Effective Vision – What's the Roadmap? Overseas Development Institute (ODI), London,

2014 287 WWF, Beyond 2015, Coastal and Marine Union (EUCC), DIVA, Global Ocean Commission, High

Seas Alliance (Representing 29 NGOs and the IUCN), Pew Charitable Trusts, the Women’s Major

Group, Draft text for SDG 14 Submitted to the 12th Session of the OWG, 16–20 June 2014 288 J.H. Knox, Human rights, environmental protection, and the sustainable development goals, Wash.

Int. Law J. 24 (3) (2015) 517–536

79

Further systemic attempts to link SDG 14 and other SDGs seem necessary to achieve

the broadest possible range of co-benefits and multiplier effects, thus improving

synergies across the board.289 An increasing number of commentators indicate that

attempts to link the SDGs are more successful if they go beyond a "political mapping"

focused solely on the 2030 Agenda text.290 Instead, a conceptual framework that places

focus on the biophysical or socioeconomic factors affecting the substantive

complementarity of different goals is better suited to highlight the full spectrum of

scientifically relevant interconnections between the SDGs. 291For example, in the case

of SDGs 1 (no poverty) and 14, such an approach shows more readily that safe, resilient

oceans and the sustainable use of marine resources are a prerequisite for ocean

ecosystem services to help alleviate income poverty and multidimensional

development, environmentally sustainable economic growth and human well-being in

coastal communities.292

SDG CONNECTIONS RELATED TO SMALL-SCALE FISHERIES AND

MARINE FISHERIES TRANSFER

Technology is enshrined in SDG 17 as a primary means of implementation in the 2030

Sustainable Development Agenda (Agenda 2030)293 while 14 targets specifically apply

to "technology" and it relate to problems that need to be addressed in terms of

technology294. Ironically, technology appears in the SDG 14 target both explicitly and

indirectly for present purposes: In the one hand, the rationale for creating a useful global

innovation framework for sustainable development tells the objective of explicitly

growing scientific expertise, expanding research capability and catalyzing the transfer

of marine technology to improve ocean health and enhance the contribution of marine

289 UNDP, UNDP Support to the implementation of the 2030 agenda for sustainable development, UN

Development Programme (UNDP), New York, 2016. 290 D. Le Blanc, Towards integration at last? The sustainable development goals as a network of

targets, UN Dep. Econ. Social. Aff. (UN Department of Economic and Social Affairs) (2015). 291 N. Weitz, M. Nilsson, M. Davis, A. Nexus, Approach to the post-2015 agenda: formulating

integrated water, energy, and food SDGs, SAIS Rev. Int. Aff. 34 (2) (2014) 37–50. 292 S. Schmidt, B. Neumann, Y. Waweru, C. Durussel, S. Unger, M. Visbeck, SDG 14: conserve and

sustainably use the oceans, seas and marine resources for sustainable development, in: M. Nilsson, D.

Griggs, A.-S. Stevance, D. McCollum (Eds.), A Guide to SDG Interactions: From Science to

Implementation, International Council for Science (ICSU), Paris, 2017.

293 UNGA, Transforming our world: the 2030 Agenda for Sustainable Development (UN Doc

A/RES/70/1, 25 September, 2015). 294 UN DESA, Global Sustainable Development Report 2016, UN Department of Economic and Social

Affairs (UN DESA), 2016.

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biodiversity to the development of developing States.295 Furthermore, though

technology is not listed in the real issues, qualitative targets drawn up under SDG 14 in

connection with marine pollution (SDG 14.1) and ocean acidification (SDG 14.3),

improving overall technology efficiency is arguably part and parcel of the underlying

justification for these targets.296 As the 2016 UN Global Sustainable Development

Report states, technology is critical "for achieving the SDGs and taking advantage of

synergies between them, as well as reducing trade-offs between targets.”297 On the other

hand, the Report not only acknowledges technology as an instrument for achieving a

higher degree of social inclusion and cooperation but also as a possible source of

conflict. The report stands for a non-discriminatory, transparent and comprehensive

coordination between developing and developed nations for inclusive innovation

policies that take into account the interests of "underserved communities” and prevent

poor and potential communities from being pressured to adopt innovations that are

chosen by others.298

Gupta and Vegelin had addressed the interrelationship between Interstate obligations

regarding Marine technology transfer and preference of small and artisanal fishing

communities and they insisted on global level discussions and deliberations for both

the needs of developing and developed states.299 They also stressed the promotion of

meaningful participation in UN processes, the adoption of equity principles, as well as

context-sensitive capacity building, technology transfer and financial support, to focus

on highly vulnerable sectors, such as small-scale fisheries, to enhance human well-

being in its many forms.300 This inclusive approach to development often builds upon

the idea of relational inclusiveness, which "recognizes that poverty and ecological

destruction are often the result of acts taken by others as a consequence of that social

injustice and the substance and mechanism of politics.301 SDGs 10 ("reduced

inequalities"), 16 ("peace, justice and strong institutions") and 17 are meant to directly

represent partnership inclusiveness, placing pressure on developing countries to "take

295 UN DESA, Global Sustainable Development Report 2016, UN Department of Economic and Social

Affairs (UN DESA), 2016. 296 Id 297 Id 298 Id 299 J. Gupta, C. Vegelin, Sustainable development goals and inclusive development, Int. Environ.

Agreem.: Politics Law Econ. 16 (3) (2016) 433–448. 300 Id 301 Id at 439

81

their obligations seriously and function via multilateral institutions."302 Gupta and

Vegelin, however, note that the related SDGs "do not collectively reflect a powerful

enough relational text that challenges status quo politics and current power structures

to establish more favorable conditions for enhancing inclusive development"303These

considerations should be linked to the role of information and communication

technologies (ICTs) in the fisheries industry. ICTs refer to technologies that facilitate

communication and the processing of information through electronic means and include

everything from radio and television to telephones (fixed and mobile), computers and

the Internet.304 The use of ICTs is growing across the fisheries sector, from resource

evaluation, capture or culture to processing and marketing. Some of these technologies

are fisheries-specific (e.g. sonar for fish tracking), while others are general-purpose

applications (e.g. Global Positioning Systems (GPS) for navigation and location

determination, mobile phones for trading, information exchange and emergencies, radio

programming with fishing communities, Web-based information and networking

resources).305 The World Summit on the Information Society (WSIS) Principles of

Declaration marked the potential contribution of ICTs in building a people-centered,

inclusive and development-oriented information society where everyone can create,

access, use and share information and knowledge in order to enable individuals,

communities and peoples to realize their full potential in promoting their sustainable

development and enhancing their quality of life.306 The Declaration further stressed that

the sharing and enhancement of global development expertise "can be improved by

removing barriers to equal access to information for economic, financial, political,

environmental, cultural, educational and science activities".307 WSIS 'ongoing work on

the role of ICTs in the implementation of Agenda 2030 further emphasized that

empowering communities in the use of such technologies in connection with SDG 14.a

and promoting the production of "useful and socially meaningful content is a capacity-

building intervention that can increase scientific knowledge and promote innovation

302 Id at 444 303 Id at444 304 E. Morgera, M. Ntona, Linking small-scale fisheries to international obligations on marine technology

transfer, Mar. Policy (Spec. Issue SDG Synerg. Sustain. Fish. Poverty Alleviation) (2017). 305 A.J. Kenny, N. Campbell, M. Koen-Alonso, P. Pepin, D. Diz, Delivering sustainable fisheries through

adoption of a risk-based framework as part of an ecosystem approach to fisheries management, Mar.

Policy (Spec. Issue SDG Synerg. Sustain. Fish. Poverty Alleviation) (2017). 306 WSIS, Declaration of Principles. Building the Information Society: A Global Challenge in the New

Millennium, World Summit on the Information Society (WSIS), 2003. 307 Id

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and research".308 In addition, ICTs will improve the efficiency of fishing activities by,

inter alia, making weather information accessible to fishermen and fishing communities

in real time, thus boosting economic growth in coastal regions.309 As for SDG 17, ICTs

are instrumental in sharing information among stakeholders from different regions

(SDG 17.6) and in building partnerships at national, regional, international and global

level between governments, the private sector and civil society (SDG 17.7).310

Furthermore, ICTs can serve as a catalyst for coordinated action and partnerships to

eradicate poverty, hunger and malnutrition, in parallel with sustainable use and natural

resource management.311 In the work of the UN General Assembly (UNGA), the

connections between inter-State technical cooperation and small-scale fishing

communities have also become evident. The latest UNGA Resolution on Sustainable

Fisheries drew attention to the circumstances affecting fisheries in many developing

countries – particularly Small Island Developing States (SIDS) – and highlighted the

urgent need for capacity building, including through the transfer of marine technology

and, in particular, fisheries-related technology.312 Furthermore, UNGA demanded

distant-water fishing nations to negotiate "equitable and fair basis" access agreements

with developing coastal states and to take into account these states'313

"legitimate expectation" by inviting them to move technologies and offering assistance

for surveillance, surveillance and control, and compliance and enforcement.314

However, it remains a matter of contention to what degree recent access agreements

help small-scale fisheries in developing States.315 In addition, international financial

institutions and relevant intergovernmental organizations have been invited to step up

their efforts to capacity building and provide technical assistance to developing

countries, particularly in the small-scale fisheries sector, in line with environmental

308 WSIS, WSIS – SDG Matrix: Linking WSIS Action Lines with Sustainable Development Goals,

World Summit on the Information Society (WSIS), 2015. 309 Id 310 Id 311 A.J. Kenny, N. Campbell, M. Koen-Alonso, P. Pepin, D. Diz, Delivering sustainable fisheries

through adoption of a risk-based framework as part of an ecosystem approach to fisheries management,

Mar. Policy (Spec. Issue SDG Synerg. Sustain. Fish. Poverty Alleviation) (2017). 312 UNGA, Sustainable fisheries, including through the 1995 Agreement for the Implementation of the

Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to

the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, and

related instruments (UN Doc A/RES/71/123, 13 February 2017). 313 Id at 214 314 FAO, Code of Conduct for Responsible Fisheries (1995) FAO Doc 95/20/Rev/1. 315 D. Diz, E. Morgera, M. Wilson, Sharing the Benefits of Sustainable Fisheries: From Global to Local

Legal Approaches to Marine Ecosystem Services for Poverty Alleviation (Science – Policy Analysis),

SCELG Working Paper No. 7, 2017

83

sustainability, "in recognition of the fact that food security and livelihoods can depend

on fisheries.316 The outcome of the 2017 UN Ocean Conference also refers to the need

to reinforce technical assistance to small-scale fishermen – especially in SIDS and Least

Developed Countries (LDCs) – in implementing policies that promote business without

increasing pressure on fisheries, and to provide access to fisheries and partnerships317,

although it does not refer to technology transfer as such.318 Although there may be

increasing political awareness of the benefits that could result from the transfer of

marine technology to small-scale fishing communities, inadequate attention has been

paid to actual and potential risks, especially with regard to technologies that aim to

improve the effectiveness of fishing activities.319 Small-scale fisheries play an

especially 'iconic' role in international development and fisheries debates, insofar as

'they reflect alternative narratives of social justice and ecological sustainability'.320

Small-scale fishing is seen as relying on local technologies which have evolved

organically over time to meet local food needs.321 In addition, local technologies are

responsive to the position where they are introduced, the relative abundance of fishing

resources, and the complex, traditional resource rights that "promote indigenous forms

of resource management based on harvest sustainability over time rather than short-

term economic benefit".322 On the other hand, the technologies supported by foreign

donors may embody "a host of values and assumptions concerning preferred social

organization, distribution of wealth and division of labour"323 The transition of fishing

technologies originating in the developed world – marked by greater urbanization,

centralization and capital intensity – has also led to the emergence of a dualistic

structure of the fisheries sectors of developing countries, whereby large numbers of

small-scale producers utilizing simple technologies compete indirectly with a newly

formed large-scale fisheries sector.324 In addition to these structural changes,

technology transfer has brought about a shift in values, as it has also led existing

316 Supra 56 UNGA 317 UNGA,Our ocean, our future: call for action (UN Doc A/CONF.230/11, 30 May, 2017). 318 Id 319 D.S. Johnson, Category, narrative, and value in the governance of small-scale fisheries, Mar. Policy

30 (6) (2006) 747–756. 320 Id at 751 321 Id at 7 322 C. Bailey, D. Cycon, M. Morris, Fisheries development in the Third World: the role of international

agencies, World Dev. 14 (10) (1986) 1269–1275. 323 Id at1271 324 J. Kurien, Small-Scale Fisheries in the Context of Globalisation, Centre for Development Studies,

Trivandrum, India, 1998.

84

technologies and organizations to be viewed as "primitive and inefficient" and, by

extension, as being insignificant for the purposes of participating in the rapidly growing

global markets for certain fish varieties.325 Furthermore, conservationist resource-use

principles and community ownership rights over fishery resources appear to be seen as

inconsistent with the "individualist, entrepreneurial ethics required to optimize

economic growth and increase coastal marine ecosystem efficiency".326

SDGS AND MARINE SPATIAL PLANNING (MSP)

Two distinct types of conflict occur in the nature of marine resources i.e, User- User

conflict and User- environment conflict. User-User conflict occurs when Ocean space

required for the growth of maritime sector are contradictory in nature where a user

environment issues arise with regard to the degradation of the quality of water or loss

to the Marie habitat.327 The fact that such disputes have historically been resolved

reactively and on an ad hoc, sectoral basis has led commentators to argue that the

worsening condition of the marine environment is largely due to a "Failure of

governance ".328 As "an instrument for managing other instruments,329" MSP has the

potential to catalyze the creation and implementation of integrated management

strategies addressing the cumulative and interactive effects of human actions on space

and time,330 thereby leading to "[maximizing and conserving] ecosystem services.331

Consequently, MSP has transcended its roots as a conservation-oriented instrument

whose primary objective was to promote the classification of MPAs, and is now being

used by an increasing number of states as a tool for expediting and streamlining the

synergistic implementation of sectoral policies332 in a manner that encourages 'more

325 Id at 3 326 Id at 3 327 C. Ehler, F. Douvere, Marine Spatial Planning: A Step-by-step Approach toward Ecosystem-based

Management, Intergovernmental Oceanographic Commission(IOC) and Man and the Biosphere

Programme, Paris, 2009. https://www.oceanbestpractices.net/handle/11329/459 328 N. Soininen, D. Hassan, Marine spatial planning as an instrument of sustainable ocean governance,

in: D. Hassan, T. Kuokkanen, N. Soininen (Eds.), Transboundary Marine Spatial Planning and

International Law, Taylor and Francis, Florence, 2015, pp. 3–20. 329 Id at 5 330 B.S. Halpern, K.L. McLeod, A.A. Rosenberg, L.B. Crowder, Managing for cumulative impacts in

ecosystem-based management through ocean zoning, Ocean Coast. Manag. 51 (3) (2008) 203–211 331 T. Potts, Marine spatial planning and various uses and interests relating to the marine environment,

in: H. Daud, T. Kuokkanen, N. Soininen (Eds.), Transboundary Marine Spatial Planning and

International Law, Taylor and Francis, Florence, 2015, pp. 42–59. 332 G. Scarff, C. Fitzsimmons, T. Gray, The new mode of marine planning in the UK: aspirations and

challenges, Mar. Policy 51 (2015) 96–102.

85

rational and wise use of limited ocean space'.333 In fact, MSP is now most commonly

described as "a public process of evaluating and allocating the spatial and temporal

distribution of human activities in marine areas in order to achieve ecological, economic

and social goals that were normally set through a political process".334 Multi-objective

MSP is also increasingly recognized as an integrated, area-based management tool in

itself335, as one of the most realistic choices for applying the ecosystem approach.336

The CBD Secretariat has described MSP as a "planning framework focusing on the

special and complex requirements of spatial planning in marine ecosystems to support

the needs or desires of the goods and services community from these environments over

time.”337 The seminal step-by-step guide to MSP from UNESCO further states that it

can be used to "select effective management strategies to preserve and safeguard the

necessary ecosystem services".338Nevertheless, despite broad awareness of the close

relationship between ecosystem services and MSP, the incorporation of environmental

factors into the planning process remains a concern with which scholars and decision-

makers are still engaged. In line with the pervasive view of MSP as a resource for

conflict resolution and consensus building, some analysts have tried to illuminate the

role of ecosystem services in the development of conflicts and the creation of synergies

between various marine and maritime uses. For example, Lester et al. states that

ecosystem services "exhibit complex interactions that generate tradeoffs in the

provision of one service relative to the delivery of others".339In situations where all

competing resources cannot be maximized simultaneously, society is forced to

hierarchise between different functions and marine space uses.340 Therefore, MSP will

333 M. Young, Building the blue economy: the role of marine spatial planning in facilitating offshore

renewable energy development, Int. J. Mar. Coast. Law 30 (1) (2015) 148–174 334 C. Ehler, F. Douvere, Marine Spatial Planning: A Step-by-step Approach toward Ecosystem-based

Management, Intergovernmental Oceanographic Commission (IOC) and Man and the Biosphere

Programme, Paris, 2009. 335 N. Schaefer, V. Barale, Maritime spatial planning: opportunities & challenges in the framework of

the EU integrated maritime policy, J. Coast. Conserv. 15 (2) (2011) 237–245. 336 GEF, Marine spatial planning in the context of the convention on biological diversity: A study carried

out in response to CBD COP 10 decision X/29, CBD Technical Series No. 68, CBD Secretariat and the

Scientific and Technical Advisory Panel of the Global Environment Facility (GEF STAP), Montreal,

2012 337Id 338 C. Ehler, F. Douvere, Marine Spatial Planning: A Step-by-step Approach toward Ecosystem-based

Management, Intergovernmental Oceanographic Commission (IOC) and Man and the Biosphere

Programme, Paris, 2009. 339 S.E. Lester, C. Costello, B.S. Halpern, S.D. Gaines, “Evaluating tradeoffs among ecosystem

services to inform marine spatial planning, Mar. Policy” 38 (2013) 80–89. 340 Id

86

serve as a future-oriented public mechanism for decision-makers to define, prioritize

and safeguard the mix of products and services that will be generated in a particular

marine area.341 SDG 14specfically cites the UN Convention on the Law of the Sea

(UNCLOS) as it provides the legal framework for the Conservation and management

of Ocean and its resources whereas the CBD emphasis on the environmental aspects

and its equity aspects have been advanced in the Understanding of those Conventions.

The approach to the ecosystems is implicit in the UNCLOS Preamble, which underlines

the interrelatedness of ocean space problems and the need to consider them as a whole.

Elements of the ecosystem approach can also be derived from the UNCLOS obligations

for coastal states to consider the impact of measures aimed at the protection and

management of species harvested on related or dependent species in their exclusive

economic zones342; to avoid, mitigate and control pollution resulting from the deliberate

or accidental introduction of alien species;343 and to preserve and protect the fragile

ecosystem.344 Nonetheless, the ecosystem approach is not based on either the policy on

marine living resources or the one on protecting the marine environment.345 As for

equity, UNCLOS' Preamble refers to the fair and equitable use of ocean and sea

resources to "realize a just and equitable international economic order." However,

UNCLOS' organizational provisions only provide minimal scope for equity in the

management of natural resources.346 And while equity is very central to marine

scientific research and technology transfer laws347, these focus on fostering equity at

the inter-state level and are applied only to a limited degree.

341Supra 332 342 UNCLOS Article 61(4) 343 UNCLOS Article 196 344 UNCLOS Article 194(5) 345 Wolfrum, N. Matz, The Interplay between the United Nations convention on the Law of the Sea and

the convention on biological diversity, Max Planck Yearbook of United Nations Law, vol. 4, 2000, pp.

445–480. 346 E.g., the provision of access to the surplus of the living resources of the EEZ: Articles 62(3), 69(1)

and 70(1); mineral resources in the Area: Articles 136 and 140; and exploitation of non- living resources

of the outer continental Shelf article 82(4). 347 M. Ntona, Benefit-sharing and Marine Scientific Research, Bene Lex blog post, 2015. Available

online at: ⟨http://www.benelexblog.law.ed.ac.uk/2015/11/01/benefit-sharing-and-marine-scientific-

research/⟩. (Accessed 11th May 2020). Also See M. Ntona, the transfer of Marine Technology as Benefit-

sharing, Bene Lex blog post, 2015. Available online at: ⟨http://www.benelexblog.law.ed.ac.uk/2015/11/

04/the-transfer-of-marine-technology-as-benefit-sharing/⟩. (Accessed 11th May 2020)

87

CBD AND ECOSYSTEM APPROACH

CBD guidance on approach towards ecosystem encourages a fair and equal distribution

of ecosystem stewardship benefits with the actors responsible for maintaining habitats

and supporting ecosystem services.348 Therefore it can be argued that CBD Parties

points out benefit-sharing as a portion of the ecosystem strategy to reward stakeholders

responsible for maintaining and restoring valuable ecosystem functions.349 Considering

this reciprocal relationship between maintaining ecosystem services and rewarding

environmental stewardship, the ecosystem approach can thus help to incorporate equity

considerations into the framework for ecosystem services.350 In addition, the CBD

suggests that enhancing benefit-sharing should entail, inter alia, proper valuation of

ecosystem resources, elimination of perverse incentives leading to their devaluation,

and replacement of such incentives with local frameworks supporting good

management practices, where possible.351 However, valuation exercises come with their

own set of challenges. A common concern among scholars is that the importance of

intermediate services ( e.g., controlling and supporting services) and cultural services (

e.g., moral beliefs, cultural identity, and traditional knowledge) is usually not taken into

account in valuation exercises, which can lead to a weakening of the respective

outcomes in decision-making processes.352 In addition, the assessment of ecosystem

resources is especially challenging in the marine context, as the diversity of human

beliefs and expectations about ocean uses makes it exceedingly difficult to identify and

measure societal preferences .353 A further complicating factor stems from the fact that

many of the main marine environment products and services (e.g. recreation, wildlife

viewing, shoreline erosion protection) are not traded in markets. Challenges often occur

348 Thus, a different notion of benefit-sharing than that at CBD Arts. 1 and 15 in relation to the use of

genetic resources. See also E. Morgera, The need for an international legal concept of fair and equitable

benefit sharing, Eur. J. Int. Law 27 (2) (2016) 353–383 349 CBD Decision V/6 (2000) para 9l; Diz et al. [65]. In the marine context, this rationale is further

substantiated by the provisions of such instruments as the Food and Agriculture Organisation (FAO)

Voluntary Guidelines for Securing Sustainable Small-Scale Fisheries, which are meant to support “the

equitable distribution of the benefits yielded from responsible management of fisheries and ecosystems

(para 5.1). 350 D. Diz, E. Morgera, M. Wilson, Marine benefits Legal Report, forthcoming on SSRN. 351 Id 352 K.M.A. Chan, A.D. Guerry, P. Balvanera, S. Klain, T. Satterfield, X. Basurto, A. Bostrom, R.

Chuenpagdee, R. Gould, B.S. Halpern, N. Hannahs, J. Levine, B. Norton, M. Ruckelshaus, R. Russell,

J. Tam, U. Woodside, where are cultural land social in ecosystem services? A framework for constructive

engagement, Bio Science 62 (8) (2012) 744–756. 353 J.K. Summers, L. Smith, “The role of social and intergenerational equity in making changes in human

well-being sustainable,” AMBIO 43 (6) (2014) 718–728.

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when it comes to developing and implementing 'payment for ecosystem services' (PES)

schemes as a framework for turning the results of valuation exercises into concrete

benefits for stakeholders. 354 PES can be described as' transfer of resources between

social actors, which aims to create incentives to align individual and/or collective land

use decisions with the social interest in natural resource management.”355 Nevertheless,

equity remains a real problem for the implementation of PES projects, as control over

the targeted ecosystem service appears to be related to property rights and land

ownership, and is thus inversely related to at least one aspect of poverty. 356. By

focusing on stakeholders with formally recognised control over the targeted service and

overlooking broader power issues, PES schemes may allow for the further

entrenchment of existing inequities as well as the reworking of traditional socio-natural

relations.357 In the marine context, the State is often considered as the provider of

ecosystem services, although regulatory measures employed to implement the

outcomes of MSP processes (e.g., community-based management, ocean zoning) can

gradually confer property/access/use rights to non-State actors, thus including them in

the pool of eligible ecosystem service providers358. However, there is a real possibility

that the adoption of a cost-efficient approach to the design of PES schemes will lead to

poor coastal communities being identified as the preferred providers of ecosystem

services, as they are in a position to provide such services in exchange for very low

payments. Inequitable outcomes may also stem from PES schemes that “lock”

communities into agreements that prevent them from pursuing more profitable uses of

their resources. Considerations relating to distributive justice and equity should thus be

incorporated into the development of PES schemes359, particularly for poor coastal

communities that “rely disproportionately on ecosystem services for their livelihoods

354 UNEP, Payments for Ecosystem services: Getting started, A Primer, Forest Trends, The Katoomba

Group and the UN Environment Programme (UNEP), 2008 355 R. Muradian, E. Corbera, U. Pascual, N. Kosoy, P.H. May, Reconciling theory and practice: an

alternative conceptual framework for understanding payments for environmental services, Ecol. Econ.

69 (6) (2010) 1202–1208 356 M. van Noordwijk, B. Leimona, L. Emerton, T.P. Tomich, S.J. Velarde, M. Kallesoe, M. Sekher, B.

Swallow, Criteria and indicators for environmental service compensation and reward mechanisms:

realistic, voluntary, conditional and pro-poor, World Agroforestry Centre, Nairobi (2007). 357 M. Barbesgaard, Blue Growth: Saviour or Ocean Grabbing.?, Global Governance/ politics, Climate

Justice & Agrarian/social Justice: Linkages and Challenges, International Institute of Social Studies

(ISS), The Hague, 2016. Also See K. McAfee, The contradictory logic of global ecosystem services

markets, Dev. Change 43 (1) (2012) 105–131. 358 W.W.Y. Lau, “Beyond carbon: conceptualizing payments for ecosystem services in blue forests on

carbon and other marine and coastal ecosystem services, Ocean Coast. Manag”. 83 (2013) 5–14. 359 Id at 9

89

and have few means for alternatives, but often are also the ones with the lowest

opportunity costs (in absolute monetary amount) to changing resource use”360. MSP, as

a deliberative and participatory decision-making mechanism that could contribute to

the development of new rights over marine space and resources – and thus to the

creation of new ecosystem service providers qualified to participate in PES schemes –

would aim to ensure that the valuation of ecosystem services and PES contribute to fair

outcomes 361. The sharing of benefits that also include exposure to marine services and

markets362, the other socio-economic aspects directly discussed by SDG 14 (MoI 14.b).

Finally, the precise advantages to be exchanged are left to a case-by - case decision,

and so are justice and equality concretization. Nevertheless, PES schemes are only one

mode of benefit-sharing, and the CBD ecosystem approach, as well as other similar

CBD guidelines, allows for a variety of benefits-sharing modalities, such as profit-

sharing, information-sharing, research and commercial collaboration, cooperative

management of natural resources, support and legal recognition of sustainable

community activity and constructive consideration of these projects of better /

alternative living possibilities.363 Potential modalities for operationalizing benefit-

sharing from ecosystem stewardship in the sense of MSP are further explored below,

after considering another, related benefit-sharing justification, namely the incorporation

of conventional information into MSP.

FAIR AND EQUITABLE BENEFIT-SHARING FROM THE INTEGRATION

OF TRADITIONAL KNOWLEDGE INTO MARINE SPATIAL PLANNING

Traditional knowledge cannot always fit into the typical distinction between biological

and human uses but rather provide a more holistic view of marine and coastal areas and

resources.364 The integration of traditional knowledge of indigenous peoples and local

360 Id at 9 361 D. Diz, E. Morgera, M. Wilson, Sharing the benefits of sustainable Fisheries: From Global to Local

Legal Approaches to Marine Ecosystem Services for Poverty Alleviation (Science – Policy Analysis),

SCELG Working Paper No. 7, 2017. Available online at: ⟨https://ssrn.com/abstract=2944330⟩. (Accessed 13 May 2020). 362 Id 363This is a synthesis of a series of CBD Decisions analysed in Morgera and Tsioumani E. Morgera, E.

Tsioumani, “The evolution of benefit sharing: linking biodiversity and community livelihoods, RECIEL

15 (2) (2010) 150–173. 364 Report of the Expert Workshop to Provide Consolidated Practical Guidance and a Toolkit for Marine

Spatial Planning, Annex IV, para 38 (hereinafter, the Report of the Expert Workshop). CBD Parties have

been invited to take into account in the implementation of MSP: CBD Decision XIII/9, paras 1 and 3(a).

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communities into MSP, both as a source of information in its own right and as a tool

for validating and adding value to existing scientific information,365 is enabled by CBD

guidance on ecosystem approach.366 The incorporation of traditional knowledge is

subject to CBD's mandate to promote the exchange of benefits arising from the use of

traditional knowledge for conservation and sustainable use.367 On account of other

sources of interpretation of CBD,368as well as applicable international principles of

human rights, it should be emphasized that traditional knowledge can only be used after

prior informed consent from indigenous peoples and local communities.369. Critically,

sincere attempts to enforce the conditions for prior informed consent and equal and

equitable sharing of benefits include a 'continuous process of creating mutually

beneficial, ongoing arrangements' between users and conventional information holders

in order to 'build trust, good relationships, mutual understanding, intercultural spaces,

knowledge exchange, new knowledge and reconciliation.370 This is a key clarification

about the need for an iterative process, not a one-off exercise in giving traditional

holders voice in relevant decision-making processes and their views and preferences

understood and addressed in that context.371 As indigenous and local communities are

frequently consulted, during the final phases of the planning process which limits their

full engagement in developing and implementing marine space plans,372 CBD Parties

have emphasized the full and effective participation of indigenous peoples and local

communities in MSP processes,373 which can be facilitated through, inter alia,

legislative frameworks, resource mapping and the promotion of recreational,

commercial and cultural activities.374 In turn, the broader and more successful

365 Report of the Expert Workshop, Annex IV, para 37. 366 BD Decision V/6 (2000) Annex, Principle 11. 367 Matthew Humphreys, “Environmental Law” 280 (8th ed. 2013) 368 CBD Article 8(j). See also CBD Decision IX/20 (2008) para 27. 369 CBD Decision XIII/18 (2016). See also E. Morgera, Reflections on 2016 UN Biodiversity Conference

(Part II): Assessing the Mo’otz kuxtal guidelines on benefit-sharing from the use of traditional

knowledge, BeneLex blog post, 2017. Available online at:

⟨http://www.benelexblog.law.ed.ac.uk/2017/03/01/reflections-on-2016-un-biodiversityconference-

part-ii-assessing-the-mootz-kuxtal-guidelines-on-benefit-sharing-fromthe-

use-of-traditional-knowledge/⟩. (Accessed 5 May 2020) 370 CBD Decision XIII/18 (2016) Annex, para 8. 371 E. Morgera, Fair and equitable benefit-sharing at the cross-roads of the human right to science and

international biodiversity law, Laws 4 (4) (2015) 803-831. 372 Report of the Expert Workshop, Annex VI, para 8(h). 373 CBD Decision XIII/9 (2016) para 3(b). See also Annex VI, para 39 of the Report of the Expert

Workshop, which notes that “[r]especting ownership of traditional knowledge is important to reassure

stakeholders that their knowledge will be used in an appropriate manner.” On the need to ensure the

involvement of stakeholders early and continually in all stages of the MSP process. 374 Report of the Expert Workshop, Annex VI, para 8(h).

91

participation of these stakeholder groups may allow MSP to incorporate traditional

knowledge in a way that respects the plurality of knowledge systems on the assumption

that traditional knowledge includes the best available scientific evidence.375

Nonetheless, if the inclusion of various types of information in MSP processes is to be

genuinely egalitarian in practice, it will also be important to investigate how specific

institutions and their modes of representation and involvement of stakeholders decide

whose information is incorporated and how376. To this end, it is important to look

beyond the MSP process and into the cultural, political, and socio-economic

environment within which it operates, with a view to identifying such contextual factors

as power / knowledge relationships that may impede the fundamental elements of

synergy development, namely stakeholder control, capacity building, and respectful,

interactive learning.377

By focusing more closely on defining stakeholder roles and priorities, and by

cultivating a deeper understanding of their reliance on ecosystem services, guidelines

established under the CBD in relation to MSP will promote the operationalization of

profit sharing in this context with ecosystem stewards and conventional information

holders.378 Cross-sectoral engagement can be expected to focus on defining the cultural

aspects of MSP and improving cooperation with different cultures; promoting equity,

openness and inclusiveness, including addressing ethical issues; and using a long-term

historical perspective on how current circumstances and issues developed in a given

region with a view to creating a shared narrative between the institutions and

stakeholders involved in the MSP process, to provide context for defining goals and

objectives, and to assist in building trust.379 Mapping has been described as one

potential method for characterizing various uses of ecosystem services, rights and

equity aspects, and for generating information on interconnections between different

actors in national or local economies. Participatory mapping was related, in particular,

to the capture of socio-cultural values and conflict resolution by visualizing the

implications of the different courses of action.380 Furthermore, stakeholder baselines

375 Report of the Expert Workshop, Annex VI, para 38. 376 S. Jentoft, Small-scale fisheries within maritime spatial planning: knowledge integration and power,

J. Environ. Policy Plan. (2017) 377 Id 378See Richard Barnes “Property rights and Natural Resources” 313 (1st ed.2009)

379 Report of the Expert Workshop, Annex VI, para 10. 380 Report of the Expert Workshop, Annex VI, para 33. See also GEF [51, p. 26].

92

could be used to describe anticipated past and future use of ecosystem services,

expectations of future roles, traditional resource utilization and access to ecosystem

services.381 The use of common data collection protocols, ethical codes for the use of

traditional knowledge and information, and structured methods for monitoring and

evaluating ecosystem health or valuation of ecosystem resources (including non-use

resources such as cultural, social and aesthetic values) can also improve stakeholder

trust and buy-in to the MSP process.382 As long as these tools can be put into practice

as an ongoing process of respectful engagement with ecosystem stewards and

traditional knowledge holders to co-create knowledge and build genuine coastal and

ocean management partnerships, they can provide MSP with a "appropriate and

effective" approach, according to the UN Ocean Conference's Call for Action.

However, while the concept of ecosystem services may help connect different SDGs in

the context of MSP, the practice of valuing ecosystem services needs to be further

developed to effectively explore non-provisioning services, as well as drawing from

different knowledge systems, with a view to clarifying different monetary and non-

monetary benefits arising from marine ecosystem management. Similarly, in the sense

of the coastal and marine climate, thorough consideration should be given to the known

shortcomings of benefit-sharing activities to effectively contribute to its specified goals

of fairness and equity.

CONCLUSION

The sustainable management of fisheries is a major challenge for the future.

Uncertainties regarding the stock assessment and improper implementation of

management measure etc. are the reason for the poor management. Stakeholders

participation is inevitable step in the effective management of fisheries.383 But the

interest of various stakeholders remains as an impediment for the decision makers to

make effective decisions. Changes and improvements are to be made in many areas,

but it is unclear whether they are occurring expedient enough to tackle further

collapses.384

381 Report of the Expert Workshop, Annex VI, para 14 382 Report of the Expert Workshop, Annex VI, para 16 383 Karjalanin Juha &Marjomaki “sustainability in fisheries Management 8(2005) last visited 12th May

2020 384 McGarvin M 2001 “Fisheries taking Stock Environment Issue Report 2217-30

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CHAPTER VI

CONCLUSIONS AND RECOMMENDATIONS

“The World’s Marine Fisheries are in trouble, as a direct result of overfishing and

the overcapacity of fishing fleets. Despite the Intensive management efforts, the

problem still persists in many areas, resulting in many fisheries being neither

sustainable nor profitable.”

Colin W Clark385

Fish is an important trading commodity of higher demand. People around the world

depends on fish for livelihood and also for nutrition. Over the last half of the century

the world have seen notable change in the realm of fisheries. The world’s total

fishmeal and fish oil is estimated to reach the value of USD 14.28 billion by 2022.

Trade is innate to fisheries and global trade in fisheries is increasing day by day. This

expansion is on account of growing demand for fish as a food as well as feed and

also the developments in technology of harvesting, processing and transportation.

The history of fisheries development in the developed countries also adds the

significance of fisheries and the various measures taken by the state promoting

fisheries modernization, development of physical infrastructure, promoting scientific

research and steps towards ensuring livelihood security of fishing community.

From this doctrinal analysis it is very clear that subsidies that contribute to the

depletion of fish stock undermine the livelihood of many people who rely on

nutritional and livelihood fisheries. Many of the member nations submitted the

proposal stating that the fisheries subsidies are the sole reason for the depletion of

world fish stock and thus need to be prohibited utterly. Elimination of all subsidies

will not be a solution for all fisheries ills, but it is an inevitable step to eliminate

overcapacity. Recognizing this as a global issue, WTO stands well poised to

confront the problems head-on. WTO insists member countries submit their

proposals for subsidies regulation. The WTO should now require WTO member

385 Colin W. Clark ‘The Worldwide Crisis in Fisheries Economic Models and Human Behaviour (1st

ed)

94

nations to gradually yet wholly eradicate all of those fisheries subsidies that

contribute to overfishing, overcapacity, and the artificial distortion of the natural

fishing market equilibrium386. Developing countries submitted a proposal that

blanket ban of all these fisheries would not be considered as affirmative action.

Instead, it will negatively affect their economy, which is dependent on the fisheries

sector both directly and indirectly. Fisheries Industries is an industry that incurs

huge expenses and unpredictable losses. So working of these industries will be futile

if all these subsidies are prohibited all of a sudden. Though these policies put

forward by WTO are beneficial to the fisheries industry, it would have a negative

impact on people whose livelihood is solely based on fishing. So there must be a

clear demarcation between the subsidies that contribute to overfishing and which

are not harmful. Underlying problem confronts to WTO is to differentiate between

harmful subsidies and those for the sustainability of the fisheries sector. The real

issue remains with a lack of universally accepted definition for Fisheries subsidies.

The concept of fisheries subsidies is not defined in WTO or other intergovernmental

agencies such as FAO or OECD. Problems related to fisheries subsidies are complex

and delicate because subsidies are introduced by the government for reasons they

considered to valid. After a point of time subsidies which served a useful purpose

may have become entrenched and now promote the interest of participants receiving

the subsidies.

United Nations Sustainable Development Goal 14 deals with the conservation of

marine resources. The development of rules governing subsidies is the subject of the

United Nations 2030 sustainable development goals. In December 2017, WTO

members recommitted to work towards the establishment of these rules by 2019, but

the negotiations face a number of technical and political challenges. Among them is

the fact that negotiators are asked to tackle the environmental rather than commercial

impacts of subsidies on renewable natural resources with their governance system

by building subsidy rules. They also create enforceable subsidies based on the

concept and legal structures from the fisheries management and fisheries

management.

386 Supra 31

95

Technological advances are at the heart of overfishing. Due to the progression of

technology, fishing vessels are equipped to catch more fish in a shorter period. What

a fisherman fails to catch on Monday, he reasons, will be caught by another

fisherman on Tuesday and so the overfishing problem persists, unabated387. The

policy of ‘freedom of High seas’ allowed the states to access to many rich fishery

resources at great distance from their shores. States have only jurisdiction over the

territorial sea extending up to 3 or 6 nautical miles. This reality accompanied with

the growing demand for fish worldwide gave impetus to well established fish traders

to fund the construction of fishing vessel worthy of long voyages.

Owing to the decision of the erstwhile Soviet Union to source protein from sea

rather than land there was an expansion of distant- water fishing. The other countries

such as Japan, federal Republic of Germany, Poland, Portugal along with the

developing nations like Republic of Korea, Cuba, Ghana and the Taiwan Province

of China also involved in distant-water fishing. The aid of these states to promote

distant water fishing was forthcoming, both in the form of direct and indirect

subsidies. Fisheries subsidies may take either direct or indirect forms. Direct

subsidies may be in the form of grants, low-cost loans and loan guarantees for vessel

construction and repair. Indirect subsidies include fuel discounts, financial

assistance for various Welfare Schemes including the construction of ports, fish

harbour and fishing landing centres and market infrastructure.

Such support from liberal states led to the adoption of new technologies and the rapid

spread of the same throughout the industry. The purpose of the subsidies was rapid

industrial development. The expansion of fishing fleet capacity both nationally and

globally was an important consequence of this. A multinational fleet of floating

factories has started sweeping the global oceans searching for new resources to carter

to the ever increasing demand for fish product and fish feed. In order for remote water

fishing vessels to continue sustainable fishing, operational costs especially the fuel

costs had to be subsidized and financial arrangements need to be negotiated among

coastal states for access to their resource. Many of these developed nations adopt

development-import strategy providing development aid to the initially to Asian and

Pacific Nations to enlarge fisheries and processing facilities and they import fish after

387 Borman, supra note 11, at 133; see also supra Section 2.1.

96

providing these countries preferential treatment. The Organization for Cooperation and

Development (OECD) and Asian-Pacific Economic Cooperation(“APEC”), by

contrast, puts the estimate of fisheries subsidies at just over $ 12 billion388. The Word

Bank Estimates of Fisheries Subsidies is somewhere between $14 billion to $20

billion389. However, the fisheries subsidies will be much higher than that of estimation.

Reducing or reforming subsidies to the fishing industry could help eliminate policies

that distort the effects of overcapacity or overfishing incentives.

RECOMMENDATIONS

6.1) The SCM Agreement could be revised to insert specific provisions on

fisheries subsidies

The current SCM Agreement is deficient to deal with fisheries subsidies. At present

there is no specific provision of law dealing with fisheries subsidies. The friends of fish

claimed that the agreement in its current version are inadequate to prevent fisheries

depletion and trade-distorting effects of subsidization. The main issues with respect to

the fisheries subsidies is that this sector is unique. The main point of variance from the

agricultural sector is that fish is a natural commodity.

6.1.1) The Definition of subsidies under SCM Agreement need to be Modified

The first and foremost problem is with respect to the lack of transparency. Even though

the Article 25 is dealing with special rules regarding the notification of subsidies, this

system failed to deliver reliable information on fisheries subsidies. Governments failed

to notify their programmes to the WTO.390 The current definition of subsidies under

Article 1 of SCM is only dealing with direct subsidies. But the subsidies are often

provided indirectly. For Instance, access to waters of a foreign country by a domestic

fishing fleet. Whether it is a subsidy under Article 1 of SCM Agreement is still a doubt.

This may be termed as a service, but this argument is barely supportable for the reason

388Press Release, European Comm'n, WTO: Fisheries Subsidies - EU Tables Proposal for Sustainable

Fishing (Apr. 22, 2003), available at

http://europa.eu.int/comm/fisheries/news-comer/press/inf03 13_en.htm.63 Id. 389 id 390 Alice L Mattice “ The Fisheries Subsidies Negotiations in the World Trade Organization: a ‘Win-

Win-Win’ for Trade, the Environment and Sustainable Development” (2004) 34 Golden Gate UL Rev

573,582

97

term “service” appears to be too ambiguous. Other Example is that Multilateral

Environmental Agreements (MEA) prohibits fishing during spawning seasons. The

non-enforcement of law is an indirect subsidy that would not come under the SCM

Agreement. The common asseveration seems to be that subsidies used in the developing

countries are non-actionable and the subsidies that are unavoidable for the development

of these countries have been left out of this exception. So the definition of subsidies

under SCM Agreement need to be modified to include the indirect subsidies as well.

6.1.2) The requirement of specificity under Article 2 of the SCM Agreement need

to be more specific.

Article 2 of the SCM Agreement clearly stipulates that a subsidy must be “specific” to

an “enterprise or industry or group of enterprises or industries”. Some of the members

are of the view that the term is broad enough to cover most of the subsidization

programmes. Whereas others are of the opinion that subsidizing a whole industry is not

specific, when there is a failure in addressing particular subsector. There is no final

conclusion with respect to term “specificity” because when a subsidy falls under the

provisions of Article 3, the essentials under Article must not be fulfilled.

There are also problems in regard to the development fisheries subsidies disciplines in

developing countries. Most of the subsidies used in developing countries are non-

actionable and those that are required to them have been left out of this categorization.

Doha Ministerial declaration not only aim to improve the disciplines on fisheries

subsidies but also enhanced the significance of this sector to developing countries.

6.3) IUU vessels could be identified by the state

Port State Measures Agreement should require port states to notify relevant flag states

and RFMOs if vessels are denied access to the port because of evidence they possess

engaged in fishing under IUU. Many of the members of WTO are also signatory to Port

State Measures Agreement. However, this agreement should be in conformity with

international law complying international rules and standards. To date, WTO members

who are parties to the agreement are limited.

98

6.4) Prohibition of subsidies that contributes to overfishing

According to the Report of FAO around 31% of assessed fish stocks are overfished.

There is a very big conceptual difference between a stock being overfished and process

of overfishing. Overfishing is referred as a measure of the fishing effort being exerted

and whether a stock is overfished is depend upon the stock's biomass. A question

usually arose is when a stock is overfished? Often it depends on the decisions of

national or regional authorities or a combination of both. Article 61 of the UNCLOS

specifically mentions the use of MSY as an indicator of risk of the overexploitation of

resources in an EEZ. Some fisheries bodies adopt precautionary approaches to those

reference points they use. For Instance, establishing a conservative point where fishing

pressure need to be reduced in order to bring back a stock to a target level. The reference

point is decided after taking in to consideration social, economic and biological and

management objectives.

6.5) Special and Differential Treatment for Developing countries

Several members of WTO have proposed S&DT should be accorded to developing and

Least developed countries. Because economy of most of these countries depend on

fishing alone. Much of the discussion regarding special and Differential treatment has

focused in the degree or limit to which subsidies provided by developing countries

might be exempted from the disciplines. This exemption must be based on criterion

such as scale of fishing involved (for e. g for small scale fishing), the type of subsidy

provided, or the geographic area in which the fishing take place (e.g. EEZ/Territorial

Sea). It also aims “capacity building” to help LDCs develop their fishing capacity in a

sustainable manner, and also the ability to assess and monitor stocks, and to regulate

fishing activities.

6.7) National Fisheries Management should give Importance

To make the rules formulated by the WTO effective it is necessary to bring forth the

national fisheries management authorities and other authorities to the main stream of

fisheries sector management. This points out that the negotiators need to make a

conjoint effort with other counter parts such as ministries or departments dealing with

fisheries. For Instance, some subsidies may be administered through the departments

which is not directly concerned with the management of fisheries. In most of the

99

countries payment of fuel subsidies is made customs or tax officials. In some countries

National Fisheries Management and fisheries surveillance are under different

institutional wings. For Instance, the department of fisheries is concerned only with

establishing rules for fishing activities and fisheries management policy settings where

the surveillance is under the governance of navy, air force and police. Such

ramifications in administration stood as impediment to ensure the effective

management, surveillance and regulation of fisheries subsidies. Meanwhile, national

fisheries management settings, surveillance and enforcement would need to be

modified enabling the reduction off provision of subsidies to identified IUU offender.

So if a vessel is not complying with the rules and also failed to provide relevant

information regarding areas of fishing, catch and landing data, logbook information on

a timely basis, then the authorities can deny subsidy payments. This may be a very good

measure for fisheries subsidies regulation but this could only be applied to the future

fisheries subsidies.

Although all WTO members acknowledge the significance of stressing IUU fishing

barring subsidies and activities leading to it as called for sustainable development Goal

Target 14.6, the implementation of the WTO discipline is somewhat challenging for a

few members. One of the objections put forward by the member nations is that current

fisheries management or enforcement mechanism in many countries is not strong

enough to capture all IUU activities. Absences of Fisheries Management and effective

implementation mechanism may lead to the difficulties in fall in with fisheries subsidies

disciplines explicitly with respect to unregulated and unreported elements of IUU

fishing. As far as Least developed countries are concerned capacity building are

inevitable at the same time the role of FAO in supporting the implementation of

Fisheries subsidies disciplines would be important.

One solution might be to draw the discipline in such a way that it incorporates assistance

and the definition of IUU should be carved based on national infractions. Nonetheless,

2020 is the deadline for curbing subsidies that led to overexploitation and overcapacity,

it could provide a benchmark transition period of years for ensuring that the disciplines

are complied with. Meanwhile the period is not so long and it provides ample

opportunities to move on improving fisheries management and enforcement rules. At

last, should concerns remain unresolved, one option might be to consider a time-limited

100

provision under which the WTO dispute settlement system would have special

consideration to the developing countries’ situations.

With a vision of achieving common prosperity, the international community joined

hands and signed up to the sustainable development Goals which is to be achieved by

2030. IUU fishing has signed out of the figure because International communities has

experienced impedance in curbing difficulties for too long. It’s a time to ensure the

effectiveness of the measure formulated to deal with these activities rather than

postponing action. A WTO subsidy legislation is a need of time.

Identification of IUU fishing activities for the purpose of framing subsidies discipline,

would need to be present both national and international levels as the current rules and

different situations warranty several approaches vis-à-vis domestic and international

IUU fishing activities.

Most of the countries have National IUU legislation which is in consonance with code

of conduct for Responsible Fisheries, the IPOA-IUU and the Port State Measures

Agreement. National legislation lays down the particularities of fisheries sector

management and activities. What tends to be illegal vary from a country to country until

a common subsidy discipline is identified.

Even if IUU activity identifications are not issued by domestically flagged vessels,

national implementing legislation could require the suspension of subsidies. Where a

foreign flagged vessels are identified as IUU fishing under National jurisdiction, there

are procedures for notifying the vessel's flag state, but the SCM committee of WTO

could also be notified at the same time. The SCM committee could prove that it is a

valuable forum for encouraging non-complaining flag state that are WTO members to

be more conscious in addressing IUU fishing as well as promoting WTO members to

fulfil their obligations under a new degree not to subsidize these activities.

RFMO vessel listing could be a useful measure for identification of IUU activities to

which subsidies prohibition would apply. Another way for identification of IUU

activity would be to draw on the information generated through the adoption of PSMA.

RFMO vessel listings along with the information generated through the implementation

of PSMA could be discussed in SCM committee to encourage offending companies and

flag states to address IUU fishing. The application of subsidies to IUU fishing is likely

to be primary exposure. Before such vessel engaged in IUU activities, vessel may have

101

constructed by using the subsidies; a past event that may not undo. Meanwhile,

domestic legislation requiring subsidies not to be given to vessels and possibly also to

vessel operators/owners once IUU fishing has been discovered would have an impact

on future subsidies, particularly on further operational subsidies such as interest rebates,

fuel rebates or subsidies for buying bait/ice. Furthermore, once vessels have been

involved in IUU activities their owners and operating companies no longer receive

subsidies, it might be useful to continue monitoring these vessels, owners and operators

for any future illegal activity. The scope of such control obviously needs to be

determined on a case- by-case basis. Different tax evasion strategies exist: once

detected by the national tax system, criminals are typically subject to fiscal oversight

for the years to come.

As per the view OECD, IUU fishing activities exist because they pay off. In order to

get rid of these activities a well enforceable WTO rules along with increase in the

chance of being caught through surveillance and enforcement is necessary. This may

prove very useful to remove subsidies that lead to IUU activities, provide enforceable

WTO rules, and use a well -established platform for informed coastal, flag and

subsidized state’s discussions. It will be a novel addition to the International and

national laws and also the regulations which addresses IUU activities. Moreover, it

provide a forum for open discussions between WTO members concerned about the

connection between illegal fishing activities and subsidies.

102

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AGREEMENTS

1) Agreement on Subsidies and Countervailing Measures

2) Agreement on Agriculture

3) UN Fish Stock Agreement 1995

4) United Nations Convention on Law of Sea

5) Convention on Biodiversity

STATUTES

1) Constitution of India

2) Marine Fisheries Protection Acts